Barnum and Barnum (Child support)

[2019] AATA 5983

Barnum and Barnum (Child support) [2019] AATA 5983 (29 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC015956

APPLICANT:  Mr Barnum

OTHER PARTIES:  Child Support Registrar

Ms Barnum

TRIBUNAL:Member M Kennedy

DECISION DATE:  29 April 2019

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change – 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.

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 29 April 2019.

2. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

Reasons for decision

1. MEMBER: The decision today will be that I will set aside the decision under review and allow Mr Barnum’s objection so as to make a new care determination with effect from 1 March 2018 that Mr Barnum has 84 per cent care of [Child 1] and Ms Barnum has 16 per cent care of [Child 1].  So that’s the decision of the tribunal.  I’ll now give you the reasons why I’ve reached that outcome.

1. Mr Barnum and Ms Barnum are the parents of [Child 1] who is the subject of a child support assessment.  Previously before the matters relevant to this review took place an existing percentage care determination was in place where Mr Barnum had 100 per cent care of [Child 1] from 29 May 2017.  However, on or about 1 March 2018, a document was lodged with Centrelink that indicated the care arrangements for [Child 1] were different to that.  The document itself indicated that Mr Barnum had 64 per cent care of [Child 1] and Ms Barnum had 36 per cent care of [Child 1].

2. Centrelink accepted that information and changed the care determination, revoking the existing care determination and making a new one and gave effect to that from 1 March 2018.  Eventually the child support program also applied that decision and that took place on 13 September 2018.  When notified that that had taken place, Mr Barnum objected to that decision and that was on 20 November 2018.

1. An objection officer considered all the evidence and on 23 January 2019 decided that they were not satisfied on the basis of the evidence before them to allow Mr Barnum’s objection.  Mr Barnum applied to the tribunal for review of that decision on 18 February 2019.

1. The statutory provisions under the child support law that are relevant to the revocation and making of care determinations have recently been the subject of substantial reform.  The new legislation however applies only in circumstances where a change of care day is after either 23 May 2018 or 1 July 2018 or if the change of care day occurs before that but the Registrar is notified or otherwise becomes aware of the change more than 26 weeks after 1 July 2018, depending on the provision applied.

1. The change of care day in this case is not in dispute and it is – it predates the changes to the legislation.  I have considered whether the new legislation should apply to this matter but decided that the new legislation does not apply.  Nothing turns on the reforms to the legislation in this case. 

1. 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 four, subdivision (c) of the Child Support Assessment Act 1999.  Upon revocation, a new percentage of care determination must be made.

1. Relevantly to 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 the 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 if the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage, then the percentage – existing percentage must be revoked and a new percentage must be made.

1. In the circumstances of this case I asked Mr Barnum and Ms Barnum about the form that was lodged with Centrelink, notifying of a change to care arrangements.  Mr Barnum did not agree that it was his signature that appeared on the form.  Ms Barnum believed that Mr Barnum did sign the form but perhaps could not remember doing so.  I also drew attention to Mr Barnum of a record appearing at page 15 of the tribunal papers where it appears he was contacted by Centrelink and confirmed the content of the change of care form with Centrelink on that occasion.  Mr Barnum was not able to recall or understand why that document was there.

10.In speaking with Ms Barnum, my assessment as to what has taken place is that there was some level of discussion about an ongoing different care arrangement for [Child 1] from that period of time but it has not ever really taken place.  I’ll proceed on the basis that Mr Barnum has forgotten about completing the form at page 14, did discuss with Centrelink when they contacted confirming the contents of that form and I accept that nearly – well, nearly a year – over a year later it is difficult to recall those details.

11.The difficulty however is that both parties have told me that the actual care arrangements for [Child 1] do not reflect the content of that form in any event.  At the commencement of his evidence, Mr Barnum told me that Ms Barnum has care of [Child 1] on average one night every fortnight and for half the school holidays.

12.In her evidence Ms Barnum agreed that although she wanted more care of [Child 1], the reality was that she had care of [Child 1] on average one night per fortnight and half of the school holidays.

13.As the evidence of both parties is the same, I will proceed on the basis that it is accurate.  I accept that from the time the Secretary of Centrelink was notified that care was not taking place in accordance with the pre-existing care determination, the care of [Child 1] was that Ms Barnum would have care of him on average one night per fortnight and half of the school holidays.

14.As mentioned earlier to the parties in this matter, I have calculated that over a calendar year on the basis that there are 12 weeks of school holidays each year, that results in a care percentage of 16 per cent.

15.Sixteen per cent is significantly differently to zero percent and so on that basis I will revoke the existing care percentage determination that was in effect from 29 May 2017 and that will be revoked with effect from 29 February 2018.

16.Upon the revocation of an existing care percentage determination, a new care percentage determination must be made to determine the new percentage to take effect from the next day, with that percentage corresponding with the actual care that I am satisfied that Mr Barnum and Ms Barnum have of [Child 1] during such period as I consider to be appropriate having regard to all the circumstances and that is the care period.

17.As mentioned a moment ago, I am satisfied that the evidence of both parties is essentially the same as to the pattern of care for [Child 1] on an ongoing basis and I will therefore determine that a new percentage of care determination is to apply from 1 March 2019 of 16 per cent for Ms Barnum and 84 per cent for Mr Barnum.

18.I need to mention one further matter in my consideration of this case and that relates to the status and consequence of the document that is in the papers at pages 7 through to 14.

19.At the signature clause of that document it is indicated that the person who signs the document recognises and accepts the documents constitutes a written agreement for Family Assistance and child support purposes and that it means that if one carer departs from the care arrangement stated on the form without the agreement of the other carer, Family Assistance entitlements and child support may continue to be assessed based on the care arrangements stated on the form until the dispute is resolved.

20.More specifically, the child support law creates a scheme of an interim care determination that applies in circumstances where care is not taking place in accordance with a care agreement and that is provided for at section 51 of the Assessment Act and also in application at section 54C.

21.The criteria for the making of an interim care determination have been considered by me in looking at this review on the basis that the document at page 7 through to 14 constitutes a written care agreement and on the basis that I accept the evidence of both parties that care is not taking place in accordance with that agreement.

22.An interim care determination can be made if, among other requirements, a parent is taking reasonable steps or reasonable action to ensure that the care arrangement is being complied with.  In the course of Ms Barnum’s evidence today, I asked about what steps she had taken to ensure that the care arrangements set out in the document is complied with.  Ms Barnum explained that she was anxious not to take the matter through the courts and she had attempted to discuss matters with Mr Barnum over time without success.

23.I asked Ms Barnum if she had consulted a solicitor or attended any mediation process in terms of care arrangements arranged under the form and I accept Ms Barnum’s evidence that she has not done so.  In circumstances where I must be satisfied that a parent is taking reasonable action to ensure that care arrangements are being complied with in order for an interim care arrangement to apply, I find that I am not satisfied that Ms Barnum has taken reasonable action to ensure that the care arrangement documented in the document at pages 7 to 14 has been complied with. 

24.On that basis the interim care provisions of the Child Support Assessment Act do not apply to this case and the care determination is to follow the actual care of the child.

25.For those reasons I have decided that the decision of the objection officer is to be set aside and substituted with a decision allowing Ms Barnum’s objection so as to make a new care determination that Mr Barnum has 84 per cent care and Mrs Barnum has 16 per cent care with effect from 1 March 2018.

END OF ORAL DECISION

Member M Kennedy