Bellett and Valentine (Child support)

[2021] AATA 3362

Bellett and Valentine (Child support) [2021] AATA 3362 (22 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021478

APPLICANT:  Ms Bellett

OTHER PARTIES:  Child Support Registrar

Mr Valentine

TRIBUNAL:Presiding Member M Sutherland

Senior Member R Ellis

DECISION DATE:  22 July 2021

DECISION:

The Tribunal sets aside the decision under review and in substitution, decides Ms Bellett provides 12 per cent care and that Mr Valentine provides 88 per cent care for [Child 1] and [Child 2] from 30 October 2020, with effect from 30 October 2020 for Ms Bellett and from 13 January 2021 for Mr Valentine.

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

BACKGROUND

1. This review is about a change to the percentage of care determinations for Ms Bellett and Mr Valentine in respect of their children [Child 1] (born October 2007) and [Child 2] (born November 2008).

2. There has been a child support assessment in place since 19 January 2016. Ms Bellett is the liable parent.

3. From 4 February 2016 the child support assessment reflected Ms Bellett as having 33 per cent care of the children and Mr Valentine as having 67 per cent care.

4. On 13 January 2021 Mr Valentine advised the Child Support Agency of a change to the care arrangements stating that from 1 October 2020 Ms Bellett would have care of the children for one night one weekend a month (3% care).

5. On 1 February 2021 the Child Support Agency made the decision to reflect that Ms Bellett provided 3 per cent care of the children and Mr Valentine provided 97 per cent care from 30 October 2020.

6. On 22 February 2021 Ms Bellett objected to this decision and on 29 April 2021 the Child Support Agency allowed the objection and made the decision to reflect that Ms Bellett provided 10 per cent care and Mr Valentine provided 90 per cent care from 30 October 2020 (the objection decision).

7. On 11 May 2021 Ms Bellett applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 22 July 2021. Ms Bellett and Mr Valentine gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (250 pages).

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 the children 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. Ms Bellett told the Tribunal that there was a court order, dated 4 February 2016, in place regarding the care of the children. She was to have the children for three nights on weekends per fortnight and for half of the school holidays. This set out the “baseline” of care but both parties were flexible and accommodated one another.

2. Due to her shifting house and finding new employment she agreed with Mr Valentine that from the end of October 2020 she would have care of the children for two nights, one weekend a month and for half the school holidays. It was agreed that she would not be able to have the children during the December 2020 to January 2021 school holidays due to her new employment. She agreed care had changed on 30 October 2020.

3. She was aggrieved by the way the Child Support Agency dealt with the information provided finding that she had 3 per cent care. It was never agreed that she would only have care of the children for one night a month or that she would forego care during the school holidays on a continuing basis. She had the children in her care for a week during the April 2021 holidays; one child stayed a few nights longer.

4. Mr Valentine said that he had no issue nor disputed what Ms Bellett had told the Tribunal and that he and Ms Bellett co-operated regarding access to the children.

5. It is not in dispute that care of the children changed on 30 October 2020, Ms Bellett would have 24 nights of care during the year and one week of the three school holidays during the year  in April, June and September- 21 nights  = 45 nights a year.

6. The Tribunal is satisfied that in this case, 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 care percentage determinations

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

2. The Tribunal finds a new pattern of care for the children commenced from 30 October 2020 with Ms Bellett having care for 45 nights, 12 per cent care and Mr Valentine having care for 310 nights, 88 per cent care.

Date of effect of new care percentage determination

1. The Tribunal finds that Mr Valentine notified the Child Support Agency of the change in care on 13 January 2021. As this is more than 28 days after the change occurred on 30 October 2020, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care, Mr Valentine, from the day before the date of notification being 12 January 2021, and for the parent with reduced care, Ms Bellett, from the day before the date the change occurred, being 29 October 2020.

2. The new determinations can be made from 30 October 2020 for Ms Bellett and from 13 January 2021 for Mr Valentine.

DECISION

The Tribunal sets aside the decision under review and in substitution, decides Ms Bellett provides 12 per cent care and that Mr Valentine provides 88 per cent care for [Child 1] and [Child 2] from 30 October 2020, with effect from 30 October 2020 for Ms Bellett and from 13 January 2021 for Mr Valentine.