Bowen and Maguire (Child support)

[2018] AATA 3794

Bowen and Maguire (Child support) [2018] AATA 3794 (1 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014210

APPLICANT:  Mr Bowen

OTHER PARTIES:  Child Support Registrar

Ms Maguire

TRIBUNAL:Deputy President J Walsh, Member P Sperling PSM

DECISION DATE:  1 August 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Bowen’s care percentage be recorded as 100% and Ms Maguire’s as 0%, with effect from 29 January 2018.

CATCHWORDS
Child support - Percentage of care - Whether there was a change to the likely pattern of care - There was a change to the existing percentages of care - 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. The applicant father seeks review of an objection decision dated 17 May 2018 in respect of care of his teenage daughter (the child).

2. It is useful to outline some background to this case. From 13 May 2016, the percentage of care reflected in the child support assessment was that both parents had 50% care of the child. Care had originally been 50% care for each parent, with weekly transitions between the parents (week-about care). Sometime during 2017 the care arrangements changed to fortnightly transitions between the parents (fortnight-about care) but still remained 50% care for each parent.

3. On 30 January 2018, the father told the CSA that the arrangements had changed and that he had 100% care of the child from 5 November 2017. He later advised that he would agree that the care assessment changed to 100% care for him from the later date of 29 January 2018. A decision was made by the CSA to change the care percentage to 100% care for the father, with effect in the child support assessment from 29 January 2018.

4. On 16 February 2018, the mother objected to this decision, arguing that care should be considered over a 12 month period which would result in an assessment of 50% to each parent because both parents had agreed to an arrangement whereby the care by the parents would alternate between school terms (a term-about arrangement).

5. On 17 May 2018, the objections officer determined that there had been no change in the care arrangements from 29 January 2018 and that both the mother and the father should therefore continue to be recorded as having 50% care of the child from this date.

6. On 29 May 2018, the father sought AAT review. The matter was heard on 1 August 2018 with both the father and the mother speaking to the tribunal by conference telephone. As well as the oral evidence of both parents, the tribunal also had regard to the documents provided by the CSA (numbered 1-126) and documents provided by the father (calendar and statutory declaration A1 to A3) and the mother (calendar and statutory declaration B1 to B4).

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period.

2. The issues for the tribunal to determine in this case are:

• Whether there should be a change to the percentages of care in respect of the child and if so, what percentages of care should be used; and

• What the date of effect of the change is.  

CONSIDERATION

Should there be a change to the percentages of care in respect of the child and, if so, what percentages of care should be used?

1. The original care percentage decision relating to the child was made on 13 May 2016. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

2. Both sections reflect the idea that the CSA makes point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify the CSA and a new care determination can be made. However, the legislative test in first instance and on review remains the same: what had happened until the date of the original decision, in this case until 30 January 2018, and what was likely to happen thereafter?

3. Both parents told the tribunal that on 29 January 2018 they agreed that the child would have term-about care with each of them for the 2018 school year as follows: terms 1 and 3 with the father and terms 2 and 4 with the mother. They told the tribunal that the child had requested this change from the beginning of 2018 as she thought this would be less disruptive to her studies during her final year of school. Both parents agreed to this arrangement.

4. The issue under consideration in this review is how this arrangement is to be reflected in the care assessment for the child. 

5. Prior to the hearing both parents provided copies of care calendars for 2018. The mother’s calendar reflected her record of the actual care that had been provided from 29 January 2018 until 31 July 2018, the day prior to the hearing. The father’s calendar covered his understanding of what had been and would be provided for the period 1 January 2018 to 21 November 2018 which was the last day of the child’s year 12 examinations.

6. The tribunal notes that considerable effort had been made by both parties to document and calculate the actual care arrangements that had taken place up until the date of the hearing. However, during the hearing, the tribunal reminded the parties that it is not the tribunal’s task to assess care in retrospect, taking account of actual care to the date of hearing. Rather, the tribunal is required to assess the actual care that had occurred up to the date of notification and the future pattern of care that was contemplated to be likely at that point.

7. During the hearing both parents had different views about the likely school holiday care arrangements over the course of the year, with the mother expressing a preference for week-about arrangements during the school holidays and the father stating that no agreement had been reached regarding the school holidays. On further questioning by the tribunal, it appeared to the tribunal that care during the school holidays was likely to be decided close to the start of each school holiday period and would usually be decided by the child herself at the time.

8. Of particular relevance to this review is the fact that the child was due to turn 18 on [date] March 2018. The Act normally provides for a child support case to be terminated when a child turns 18 years of age. However, section 151B of the Act allows for an application to be made for an assessment to continue beyond a child’s 18th birthday if the child is in full-time secondary education and the carer entitled to child support for the child applies for the administrative assessment to continue in force until the last day of the secondary school year in which they turn 18.

9. In this case, when the original decision was made on 30 January 2018, the CSA had recorded that the case was due to end on [date] March 2018, which was the day before the child turned 18 years. The CSA documents show that by 30 January 2018, when the original decision was made, no application had been made to extend the case. Indeed, the documents show that the first discussion with CSA regarding the possible extension of the case beyond the child’s 18^th birthday occurred on 13 February 2018 when the father contacted the CSA to discuss the original change of care decision. During another discussion, the CSA advised the mother that the case was due to end on [date] March 2018 unless the current primary carer, at that time the father, applied for an extension of the case before the child’s 18^th birthday.

10. As the actual or likely pattern of care is assessed over a care period to determine the care percentages for each parent, the tribunal first considered the appropriate care period in this case. While “care period” is not defined in the legislation, according to the CSA’s policy, it is generally a 12-month period from the day on which the actual care of a child changed. However, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. In this case the tribunal considered that, as at the date of notification there was no reason to assess the child’s care beyond [date] March 2018 (the day before her 18^th birthday) when the child support assessment was due to end, because no application had been made by her primary carer at the time to extend the case. Since the parents’ agreement was for the father to have care for term 1, it was unlikely he would apply for the child support assessment to be extended past the child’s 18^th birthday. Accordingly, the tribunal was not persuaded that a care period of 12 months was appropriate here.

11. In terms of when the care period started, the tribunal noted that there was no agreement between the parties to change the care arrangements prior to 29 January 2018, or any evidence that there was a new pattern of care prior to this date. However, the tribunal was satisfied that the parents reached agreement for a new pattern of care of the child, on a term-about basis, to commence from 29 January 2018.

12. Therefore the tribunal decided that the appropriate care period in this case to determine the care percentages for each parent was the period 29 January 2018 to [date] March 2018.

13. In this case, as outlined earlier in these reasons, the tribunal considered what was likely to happen over this care period. In terms of what the care was likely to be from the date of notification going forward, It was clear from the evidence that, under the agreement that the parents reached, it was likely that the child was to be in the care of the father during term 1 2018, which was primarily the period from the date of notification up to [date] March 2018 (the day before her 18^th birthday when the case was due to end).

14. The tribunal also took into account evidence from the parents that during 2017 there were some departures in the agreed week-about and fortnight-about arrangements because the child so decided. Further the tribunal accepted that, given that the child was almost 18 years old, it was reasonable to expect that there would be similar ad hoc variations at the whim of the child during the care period under review in 2018.  

15. Notwithstanding this, the tribunal was satisfied that there was likely to be a pattern of care in place for a block care, from 29 January 2018 to [date] March 2018, and that during this period the father’s percentage of care should be reflected as 100% and the mother’s percentage of care as 0%. In reaching this decision, the tribunal accepted that there would inevitably be variations in care over time, such as those described in paragraph 23 of these reasons. However, on balance the tribunal concluded that any such variations were likely to represent 10% or less of the care during the period under consideration and therefore would have no effect on the outcome of the care determination for child support purposes.

What is the date of effect of the change?  

1. Finally, the tribunal turned to the question of the date of effect of the change in care arrangements. The tribunal is satisfied that all of the provisions in subsection 54G(1) of the Act are satisfied and revokes the existing determinations of percentage of care on that basis.

2. The tribunal has found that the care change occurred on 29 January 2018 and that the father notified the CSA of the change on 30 January 2018. Accordingly, the tribunal determines that revocation of the existing determination takes effect on 28 January 2018, the day before the care change occurred, and that care of the child should be assessed as 100% to the father and 0% to the mother from 29 January 2018.

3. The decision under review should be set aside on this basis. 

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Bowen’s care percentage be recorded as 100% and Ms Maguire’s as 0%, with effect from 29 January 2018.