Brooker and Valmary (Child support)

[2019] AATA 257

Brooker and Valmary (Child support) [2019] AATA 257 (15 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015270

APPLICANT:  Mr Brooker

OTHER PARTIES:  Child Support Registrar

Ms Valmary

TRIBUNAL:Member W Kennedy

DECISION DATE:  15 January 2019

DECISION:

The decision under review is affirmed.

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 affirmed

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 Valmary and Mr Brooker are the parents of two children, [Child 1], who was born in 2002, and [Child 2], who was born in 2006, in respect of whom there is a child support assessment.  This application concerns the percentage of care used in the child support assessment.

2. From 22 November 2016 the child support assessment was based on Mr Brooker having 14% care and Ms Valmary having 86% care of [Child 1] and [Child 2].

3. On 24 May 2018 Ms Valmary advised the Child Support Agency of the Department of Human Services (the Department) that she had 91% care of [Child 1] and [Child 2] from 1 December 2017.  Following a discussion with Mr Brooker, on 19 July 2018 the Department decided to accept Ms Valmary’s advice and issued a new child care assessment based on Mr Brooker having 9% care and Ms Valmary having 91% care of [Child 1] and [Child 2] with effect from 1 December 2017.  This was applied to the child support assessment with effect from 24 May 2018.

4. On 3 August 2018 Mr Brooker objected to the decision, claiming that there had been no change to the care of [Child 1] and [Child 2].  On 19 September 2018 a Department objections officer determined that Mr Brooker had 13% care of [Child 1] and [Child 2] and that Ms Valmary had 87% care of [Child 1] and [Child 2].  These figures were applied to the child support assessment with effect from 24 May 2018.

5. On 22 October 2018 Mr Brooker applied to this Tribunal.  The Tribunal considered the application and determined the matter on 15 January 2019.  In considering the application the Tribunal took into account the oral evidence of Ms Valmary and Mr Brooker together with the documentary material provided by the Department (folios 1 to 155).  At the hearing Mr Brooker acknowledged that he had received copies of the documents, however Ms Valmary said that she had not received the documents.  The Tribunal elected to proceed with the hearing and in the event determined that Ms Valmary was not disadvantaged in any way by not receiving the documents in advance of the hearing.  Ms Valmary and Mr Brooker both attended the hearing by conference telephone and gave their evidence under affirmations.  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] and [Child 2] 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 Mr Brooker said that he had care of the children every second weekend.  He said that there was some flexibility in the arrangements between the parents.  He said that there had been a period in January and February 2018 when he had not had care but that since early March 2018 he had had care of the children every second weekend.  He acknowledged that there had been some weekends when he had missed care.  When pressed by the Tribunal he said that he would only have missed about two weekends since March 2018.  Mr Brooker emphasised that he does not keep a care calendar and that he could not be absolutely certain.

11.  Mr Brooker said in a letter dated 22 August 2018 (folio 91) that he had care of the children, generally every second weekend, until they went on holidays with Ms Valmary on 21 December 2017.  He said that he had last had care of them on 18 or 19 December 2017 and that he did not have care of them again until 2 March 2018 “when the boys started coming over and staying with me on a regular basis again.”  In his letter Mr Brooker acknowledges that there has been “the odd occasion” when he was scheduled to have care but did not.  Mr Brooker has also provided two letters from third parties (folios 89 and 90).  Both letters are highly qualified, the first stating “my understanding is that …” and the second stating “I was under the impression” suggesting that the letters are only repeating what the authors have been told rather than any first-hand knowledge.  The letters do not provide care dates.

12.  Ms Valmary acknowledged that Mr Brooker had had care of the boys every second weekend up to December 2017 and that there had been some flexibility in the arrangements.  She has acknowledged that in July 2017 she had gone away for three weeks and Mr Brooker had cared for the children throughout that time.  Neither party advised the Department at the time that there had been any change of care.  The Tribunal finds that the holiday in July 2017 was a one-off event and that the established pattern of care was continued afterwards. 

13.  Ms Valmary said that there had been a change in the pattern of care in December 2017 and that the previous pattern of care had not been resumed.  Ms Valmary said in an email dated 3 September 2018 (folio 93) that Mr Brooker had no care in January and February 2018.  This is consistent with Mr Brooker’s statement.  However Ms Valmary disputes that the established pattern of care was resumed in March 2018.  She states in her email that Mr Brooker had the following care:

·March 2018     2 nights

·April 2018       4 nights

·May 2018        1 night

·June 2018      2 nights

·July 2018        3 nights

·August 2018    3 nights

14.  At the hearing Ms Valmary said that she keeps a care calendar and that she knows exactly which dates Mr Brooker had care of the children.  At the hearing Mr Brooker said that Ms Valmary would know better than him because she keeps a calendar.

15.  The Tribunal has decided to accept Ms Valmary’s evidence as to care, however the actual care may be interpreted in different ways.  If the Tribunal were to find that a new pattern of care commenced on 18 December 2017, the evidence before it would show that Mr Brooker is likely to have 23 nights’ care in a 12 month care period.  This is 6% care.  If however the Tribunal were to consider that the period from 18 December 2017 to the resumption of a pattern in March 2018 was a one-off event caused by Ms Valmary taking the children on holiday it would find that Mr Brooker is likely to have 30 nights’ care in a 12 month care period.  This is 8% care.  The Tribunal is conscious that there is a degree of flexibility in the care arrangements and that it is possible that in some circumstances Mr Brooker’s care percentage could increase.  If the Tribunal were to add three weeks’ care (such as occurred in July 2017) to the totals calculated above it would result in Mr Brooker having care for up to 51 days in a 12 month care period.  The Tribunal finds that this is the maximum amount of care that could be attributed to Mr Brooker in accordance with the evidence before it.  This is 13% care.  All of these care figures result in the same cost percentage so establishing an exact figure is somewhat academic.

16.  Subsection 54F(1) of the Act, as it was at the time of Ms Valmary’s application, 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)  If:

(a)  a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)  if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(c)  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 responsible person’s existing percentage of care for the child; and
(d)  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

(e)  section 54G does not apply;

the Registrar must revoke the determination.

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

17.  The Tribunal is satisfied that a determination has been made under section 50 of the Act thus satisfying paragraph 54F(1)(a).  That determination is that Ms Valmary has 86% care and Mr Brooker has 14% care.  Sections 51, 52 and 54G of the Act do not apply to this case and thus paragraph 54F(1)(b) and paragraph 54F(1)(e) are not relevant.  Through the provision of information from Ms Valmary on 24 May 2018 the Secretary has become aware that the actual care does not correspond with the existing percentage of care determination, thus satisfying paragraph 54F(1)(c).  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)(d).  It follows that a determination under section 50 of the Act would not be the same as the existing determination and thus the Registrar must revoke the existing determination.

18.  Subsection 54F(2) of the Act determines the date of effect of the revocation of the existing determination:

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

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

(i)  in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

(ii)  otherwise—the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c)  otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

19.  As the Department became aware of the change of care on 24 May 2018, which is more than 28 days after the change and there is no interim determination, in accordance with paragraph 54F(2)(c) of the Act the date of revocation is the day before the day of notification.  Thus the existing determination is revoked on 23 May 2018.

20.  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.

21.  The existing determination has been revoked, thus satisfying subparagraph 50(1)(b)(i).  Subparagraph 50(1)(b)(ii) and subsection 50(2) require the Tribunal to consider the likely pattern of care that Mr Brooker and Ms Valmary will have of the children in a care period. 

22.  The Tribunal has determined that the most appropriate care period is 12 months from the change of care date.  The Tribunal finds that during the care period Mr Brooker is likely to have no more than 13% care of [Child 1] and [Child 2] and that Ms Valmary is likely to have at least 87% care.

23.  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 24 May 2018. 

24.  The Tribunal’s decision is the same as that of the Department objections officer and, accordingly that decision is affirmed.

DECISION

The decision under review is affirmed.