Bruce and Bruce (Child support)

[2022] AATA 4004

Bruce and Bruce (Child support) [2022] AATA 4004 (13 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/CC024027

APPLICANT:  Mr Bruce

OTHER PARTIES:  Child Support Registrar

Ms Bruce

TRIBUNAL:Member F Staden

DECISION DATE:  13 October 2022

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. Mr Bruce and Ms Bruce are the separated parents of two children, born 2015 and 2018 (the children). There has been a child support assessment in this case from 6 February 2022. Mr Bruce is the parent liable to pay child support, with collection by Services Australia – Child Support (Child Support) from 6 February 2022.

2. This review is about the care percentages used in the child support assessment.

3. The initial care percentages recorded for the children were 0% for Mr Bruce and 100% for Ms Bruce.

4. On 28 March 2022, Ms Bruce notified Child Support that a care change had occurred and provided a copy of 10 March 2022 consent orders.

5. On 6 April 2022, a Child Support primary decision maker decided that, based on the 10 March 2022 consent orders, the care percentages for the children were 28% for Mr Bruce and 72% for Ms Bruce from 18 March 2022.

6. On 7 April 2022, Mr Bruce lodged an objection to the 6 April 2022 decision on the basis that the consent orders had been wrongly interpreted. He argued that the start date for the new care percentages should be 10 March 2022 rather than 18 March 2022.

7. On 3 May 2022, an objections officer disallowed Mr Bruce’s objection.

8. On 3 June 2022, Mr Bruce applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

9. A hearing was held on 13 October 2022. Mr Bruce and Ms Bruce gave sworn evidence by MS Teams audio. The tribunal had before it documents provided by Child Support (199 pages), a copy of which was sent to each parent before the hearing.

10. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions most relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. In this case, the parents agree that care is in line with the consent orders and that the new care percentages have been correctly determined. At issue here is the date from which the new care percentages should be applied to the assessment.

CONSIDERATION

1. Mr Bruce is of the view that the new care percentages should be applied to the assessment from 10 March 2022, the date of the consent orders.

2. The tribunal noted the 10 March 2022 consent orders relevantly state:

   Care Arrangements

   2. That the children live with the Mother and spend time with the Father at times agreed between the parties in writing or otherwise, on a fortnightly basis as follows:

   2.1. From the date of these Orders until further Order, each fortnight as follows:

   2.1.1. During Week 1:

   2.1.1.1. from 3:00pm Friday (commencing 18 March 2022) to 9:00am the immediately following Monday, unless the Monday falls on a Public Holiday or during school holidays when changeover will be at 3:00pm.

   2.1.2. During Week 2:

   2.1.2.1. from 9:00am Wednesday (commencing 23 March 2022) to 9:00am the immediately following Thursday.

3. While 2.1 states that the care arrangements apply from the date of the orders, the definitions of Week 1 and Week 2 below include clearly specified start dates, the first of which is a start date of 18 March 2022 for Week 1.

4. The tribunal found that the correct interpretation of the consent orders is that the care change began on 18 March 2022.

5. Additionally, the tribunal noted that although a care period is not specifically defined in the Assessment Act, the Child Support Guide includes the following definition:

   A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event).

6. In this case the actual care of the children did not change until 18 March 2022, the date on which the children first entered Mr Bruce’s care subsequent to the start of the assessment. As 18 March 2022 is the start date for a new pattern of care, it follows that it is the start date of the new care period and so the date from which the parents’ revised care percentages apply.

DECISION

The decision under review is affirmed.