Bright and Child Support Registrar (Child support)

[2019] AATA 379

Bright and Child Support Registrar (Child support) [2019] AATA 379 (22 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015184

APPLICANT:  Ms Bright

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Kennedy

DECISION DATE:  22 January 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period commencing on 3 July 2017, Ms Bright had 55% care and [Mr A] had 45% care of [Child 1].  This decision affects the child support assessment from 6 October 2017.

CATCHWORDS

CHILD SUPPORT – percentage of care – pattern of care – flexible arrangements – 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. Ms Bright and [Mr A] are the parents of [Child 1].  This application concerns the percentages of care of [Child 1] used in the child support assessment.  [Child 1] was born in 2012 and there has been a child support assessment in place since 6 February 2017.

2. As a result of a decision of the Tribunal (differently constituted) dated 3 January 2018, from 6 February 2017 the child support assessment was based on [Mr A] having 42% care and Ms Bright having 58% care of [Child 1].

3. On 17 May 2017 [Mr A] advised the Child Support Agency of the Department of Human Services (the Department) that he had 50% care of [Child 1] from 24 April 2017.  The Department took no action on this advice, apparently because it was awaiting the outcome of an earlier application to the Tribunal regarding an earlier care decision made by the Department.  On 20 April 2018 [Mr A] contacted the Department seeking action on his advice provided in May 2017.  Following discussion with both parents, on 3 July 2018 the Department decided to accept [Mr A]’s advice of 17 May 2017 and issued a new child care assessment based on [Mr A] having 50% care of [Child 1] with effect from 17 May 2017.  At the same time the Department decided that there had been a further change of care on 3 July 2017.  The Department decided that from 3 July 2017 Ms Bright had 52% care and [Mr A] had 48% care of [Child 1].

4. On 11 July 2018 Ms Bright objected to the latter decision, stating that the usual pattern of care from 3 July 2017 to 15 June 2018 was that she had care four or five nights per week.  Ms Bright provided a detailed care calendar in support of her claims.  In response [Mr A] provided a detailed analysis of care.  On 13 September 2018 a Department objections officer determined that Ms Bright and [Mr A] each had 50% care.  These figures were applied to the child support assessment with effect from 6 October 2017, that being the date on which the Department became aware of the change of care that occurred on 3 July 2017.

5. On 8 October 2018 Ms Bright applied to this Tribunal.  The Tribunal considered the application and determined the matter on 22 January 2019.  In considering the application the Tribunal took into account the oral evidence of Ms Bright together with the documentary material provided by the Department (folios 1 to 219).  Copies of these documents were provided to Ms Bright in advance of the hearing.  Ms Bright attended the hearing in person and gave her evidence under affirmation.  [Mr A] did not respond to the invitation to be joined as a party to the appeal.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of [Child 1] in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Ms Bright said that the Department had miscalculated the care percentages.  She said that for the period from 3 July 2017 she calculated that she had 59% care.  This figure was arrived at by excluding holiday care.  Ms Bright said that she considered that holidays were all one-off events.

11.  Both parties have provided comprehensive analysis based on care diaries.  Despite the somewhat assertive tone adopted by both parents, they are in fact substantially in agreement as to the actual care.  They differ only as to how and when a pattern is established and how any such pattern is to be interpreted.  The parents base their analyses on the particular dates which best suit their particular case, each deciding to count or to not count particular dates based on their own views as to the relevance of particular circumstances.  

12.  In this case court orders determining care came into effect on 15 June 2018.  The care period is therefore from the change of care, on 3 July 2017 to 14 June 2018.  As this period has now passed the Tribunal is able to use actual care in making its decision.  Relying mainly on Ms Bright’s detailed care calendar, but noting the commentary provided by [Mr A], the Tribunal finds that Ms Bright had care of [Child 1] for 189 of the 343 nights in that period.  The Tribunal finds that an examination of the actual care discloses a pattern, albeit one that is characterised by a degree of flexibility.  The Tribunal finds that Ms Bright had 54.47% care of [Child 1] from 3 July 2017.  Under section 54D of the Act this figure is rounded up to 55%. 

13.  Subsection 54F(1) of the Act provides that the Department may revoke a percentage of care determination if a number of criteria are met:

Determination must be revoked if there is a change to the responsible person’s cost percentage

(1)         The Registrar must revoke a determination of a responsible person’s percentage of care               (the existing percentage of care) for a child made under section 49 or 50 if:

(a)      the Registrar or Secretary is notified, or otherwise becomes aware, that the care   of the child that is actually taking place does not correspond with the responsible   person’s existing percentage of care for the child; and

(b)      the Registrar is satisfied that the responsible person’s cost percentage for the   child would change if the Registrar were to determine, under section 49 or 50,   another percentage to be the person’s percentage of care for the child; and

(c)      section 54G does not apply; and

(d)      subsection (2) applies in relation to the individual.

Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

(2)         This subsection applies in relation to a responsible person if:

(a)      disregarding paragraph 53(1)(c), section 51 did not apply in relation to the   responsible person; or
                    (b)      section 51 did apply in relation to the responsible person but the maximum   interim period for the determination has ended; or
                    (c)      all of the following apply:

(i)       section 51 did apply in relation to the responsible person;

(ii)       the maximum interim period for an earlier determination of the   responsible person’s percentage of care for the child has not ended;

(iii)      an interim period does not currently apply in relation to the earlier   determination;

(iv)      the determination referred to in subsection (1) was made while the earlier   determination was suspended under this Subdivision.

14.  Through the provision of information provided by the Administrative Appeals Tribunal in relation to an earlier application to the Tribunal, on 6 October 2017 the Secretary became aware that the actual care does not correspond with the existing percentage of care determination, thus satisfying paragraph 54F(1)(a). 

15.  The change in percentage of care is such that, in accordance with section 55C of the Act, there will be a change in the cost percentages of the parties, thus satisfying paragraph 54F(1)(b) of the Act.  Sections 54G and 51 of the Act do not apply, thus satisfying paragraphs 54F(1)(c) and 54F(1)(d) of the Act.  As a result the Registrar must revoke the existing determination.

16.  Subsection 54F(3) of the Act determines the date of effect of the revocation of the existing determination:

(3)         The revocation of the determination takes effect at the end of:

(a)      if the Registrar or Secretary is notified, or otherwise becomes aware, of the    matter referred to in paragraph (1)(a) within 28 days after the change of care day   for the responsible person—the day before the change of care day; or

(b)      if the Registrar or Secretary is notified, or otherwise becomes aware, of that    matter more than 28 days after the change of care day for the responsible person   and:

(i)       the responsible person’s care of the child has increased—the day before    the Registrar or Secretary is notified, or otherwise becomes aware, of   that matter; or

(ii)       the responsible person’s care of the child has reduced—the day before   the change of care day.

17.  As the Department became aware of the change of care on 6 October 2017, which is not within 28 days of the change, and Ms Bright’s care increased, in accordance with subparagraph 54F(3)(b)(i) of the Act the date of revocation is the day before the day on which the Registrar was notified.  Thus the existing determination is revoked on 5 October 2017.

18.  Section 50 of the Act provides that the Department must determine new percentages of care in the following circumstances:

Determination of percentage of care—responsible person has had etc. a pattern of care for a child

(1)  This section applies if:

…

(b)  the Registrar:

(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and

(ii) is satisfied that the responsible person 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)The Registrar must determine the responsible person’s percentage of care for the child during the care period.

(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

19.  The existing determination has been revoked, thus satisfying subparagraph 50(1)(b)(i) of the Act.  Subparagraph 50(1)(b)(ii) and subsection 50(2) require the Tribunal to consider the likely pattern of care that [Mr A] and Ms Bright will have of their child in a care period.  Relying primarily on the detailed care diary analysis provided by Ms Bright the Tribunal finds that Ms Bright had 55% care and [Mr A] had 45% care.

20.  Section 54B of the Act provides that the determination will have effect from the day immediately after the date of revocation of the earlier percentage of care determination.  Thus the date of effect is 6 October 2017.  The Tribunal emphasises that this decision does not affect the subsequent change of care that took place on 15 June 2018. 

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that for the period commencing on 3 July 2017, Ms Bright had 55% care and [Mr A] had 45% care of [Child 1].  This decision affects the child support assessment from 6 October 2017.