Bean and Chalkley (Child support)
[2022] AATA 3502
•10 June 2022
Bean and Chalkley (Child support) [2022] AATA 3502 (10 June 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2022/BC023545
APPLICANT: Mr Bean
OTHER PARTIES: Child Support Registrar
Ms Chalkley
TRIBUNAL:Member P Jensen
DECISION DATE: 10 June 2022
DECISION:
The decision under review is set aside and, in substitution, Mr Bean is recorded as providing 0% care for [Child 2] with effect from 16 April 2018 and Ms Chalkley is recorded as providing 100% care for [Child 2] with effect from 1 October 2021.
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 – interim period does not apply – 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
Mr Bean and Ms Chalkley are the parents of [Child 1] and [Child 2]. This case concerns the parents’ care of [Child 2] as recorded by the Child Support Agency (“the CSA”).
On 7 February 2018 a court made orders concerning the parents’ care of the children. The CSA subsequently recorded Mr Bean as providing 18% care and Ms Chalkley as providing 82% care for [Child 2] pursuant to those orders. For reasons that do not appear in the hearing papers, the CSA recorded the parents as providing those percentages of care from 2 March 2018.
On 1 October 2021, Ms Chalkley reported a change in the care of [Child 2]. There is now no dispute that the change in care occurred on 16 April 2018, at which point Ms Chalkley started providing full-time care.
Care decisions normally reflect the parents’ actual care of the child. However, in certain circumstances and for a limited period, parents can be recorded as providing the care prescribed by a formal care arrangement, such as a court order, rather than the care they were actually providing. Such decisions are called interim determinations. On 2 December 2021 the CSA made an interim determination whereby Mr Bean was recorded as providing 18% care and Ms Chalkley was recorded as providing 82% care from 16 April 2018 to 23 July 2018, and Mr Bean was recorded as providing 0% care and Ms Chalkley was recorded as providing 100% care from 24 July 2018. Mr Bean promptly objected to that decision. An objections officer disallowed the objection. Mr Bean promptly applied to the Tribunal for further review. I heard the matter on 31 May 2021. I informed the parents that I had recently considered the interim determination provisions in another case and had concluded that if the change in care was reported after the expiration of any possible maximum interim period, the decision-maker could not make an interim determination. I informed the parents that the other case would be published shortly, and I gave them a summary of my reasoning in that other case. I informed the parents that when Ms Chalkley reported the change in care of [Child 2], any possible maximum interim period had expired. Mr Bean sought, and I granted, an opportunity to make written submissions in respect of the correct interpretation of the interim determination provisions. Mr Bean subsequently provided written submissions but they were not in respect of the interpretation of those provisions. Importantly, he did not withdraw his application for review.
Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). They involve the revocation of the existing care determinations (which in this case were the determinations to record Mr Bean as providing 18% care and Ms Chalkley as providing 82% care from 2 March 2018) and the making of new care determinations.
The starting point when considering the revocation of the existing care determinations is section 54G of the Act. It contains a number of requirements, one of which is that the parent with increased care reported the change in care within a period that was reasonable in the circumstances. Ms Chalkley acknowledged that she did not report the change in care within a period that was reasonable in the circumstances. Section 54G is not satisfied.
Section 54F of the Act also provides for the revocation of the existing care determinations. The requirements of section 54F are clearly satisfied. The change in care was not reported within 28 days of its occurrence and so, unless an interim determination is made, Mr Bean’s reduced percentage of care (from 18% to 0%) has effect from the date on which the change in care occurred, which was 16 April 2018, and Ms Chalkley’s increased percentage of care (from 82% to 100%) has effect from the date on which the change in care was reported, which was 1 October 2021: subsection 54F(3) of the Act.
The case to which I referred during the hearing has now been published: Castle and Jonas (Child Support) [2022] AATA 1702. For the reasons stated in that case, an interim determination cannot be made when the change in care was reported after the expiration of any possible maximum interim period. In this case, the maximum possible interim period was a 26-week period commencing on the date on which the change in care occurred: sections 5 and 53A of the Act. Ms Chalkley reported the change in care after any possible maximum interim period. An interim determination cannot be made.
DECISION
The decision under review is set aside and, in substitution, Mr Bean is recorded as providing 0% care for [Child 2] with effect from 16 April 2018 and Ms Chalkley is recorded as providing 100% care for [Child 2] with effect from 1 October 2021.
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