Bruno and Child Support Registrar (Child support)

[2020] AATA 2129

Bruno and Child Support Registrar (Child support) [2020] AATA 2129 (6 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018688

APPLICANT:  Ms Bruno

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  6 May 2020

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 correctly 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 omitted 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

1. Ms Bruno and [Mr A] are the parents of [the child], in respect of whom a child support assessment is in place.

2. Prior to April 2019, child support was calculated on the basis of a care percentage determination reflecting [the child] as 100% in Ms Bruno’s care.  On 24 July 2019, [Mr A] advised that he had 89% care of [the child] from 1 April 2018.  The Department revoked the existing care percentage determination and made a new one reflecting the information [Mr A] had provided, after being unable to make contact with Ms Bruno to discuss. 

3. The Department’s decision was effective on the child support assessment in respect of Ms Bruno from 1 April 2018, but in respect of [Mr A] only from 24 July 2019.  The Department ‘suspended’ the child support liability between those two dates as the effect of the legislation was that neither parent had a sufficient care percentage determination in effect for child support purposes during that period.

4. The Department made its decision on 21 August 2019 and notified the parents of that decision by letter the same day.  Ms Bruno lodged an objection to the decision on 5 December 2019.  Her objection was partly allowed by increasing [Mr A]’s care percentage determination to 100% but from a later date: 5 April 2019.  The objection was decided on 5 March 2020.

5. The objection outcome had no practical effect on the child support assessment because the effect of the objection was limited by section 87AA of the Child Support (Registration and Collection) Act 1989.  In matter BC018736 I have reviewed the decision in relation to the limitation of effect.  I have prepared separate reasons in that matter.

6. Ms Bruno applied to the Tribunal for review on 20 March 2020.  [Mr A] is not automatically a party to the review, but the Tribunal contacted him and invited him to be joined as a party.  Such a request must be made in writing.  [Mr A] did not make the request and so was not joined as a party.  He was however automatically a party in matter BC018736.  The management of the proceedings have therefore been somewhat awkward.

7. Inevitably, [Mr A] addressed matters in his evidence relevant to these proceedings, even though he is not a party.  I have treated him as a witness for the purpose of these proceedings and taken into account what he told me.

CONSIDERATION

1. Ms Bruno’s submissions in respect of the care percentage matter was that [the child] has always been in her care, although she confirms he would visit his father.  As I further understand Ms Bruno’s evidence, the visits may be for more than a week, but she did not view this as a change in care as they were only visits.  I note that Ms Bruno had told the Department that from 5 April 2019 [the child] would spend time with [Mr A] during the week.  I understand Ms Bruno was supportive of [the child] spending time with his father.  Sometimes he would come back on weekends but sometimes not.

2. [Mr A] observed that perhaps there was confusion as to exactly what was meant by the term ‘in care’.  I think [Mr A] is probably correct in that regard.  I explained to the parties that typically, for child support purposes, care will be determined by reference to nights in care, or in other words where the child spent each night.

3. While I understand Ms Bruno’s point of view, for child support purposes the time spent with [Mr A] is relevant to care, even if she viewed this period as a period when she was happy to allow [the child] to visit his father.

4. The difficulty I have in this matter is the evidence does not rise to the level of precision that child support law assumes will be present to make the determinations.

5. The approach of the objections officer in noting that for the period 1 January 2018 to 31 December 2018, Ms Bruno remains listed on school records as [the child]’s parent/guardian is sound.  I also note that Ms Bruno is recorded as telling the Department that [the child] moved to [Mr A] on the last day of term, which was identified to be 5 April 2019.  I have no superior evidence available to assist me make the necessary findings.

6. I find therefore that care of [the child] was not taking place in accordance with the existing care percentage determination from 5 April 2019. The existing care percentage determination is revoked with differential effect for each parent, but in respect of Ms Bruno from 4 April 2019. This revocation is made pursuant to section 54F of the Child Support (Assessment) Act 1989 (the Act), as I note the cost percentage would change if a new determination were made.

7. The new care determination is to be made pursuant to either section 49 or section 50 of the Act.  The evidence does not permit me to identify a pattern of care in respect of Ms Bruno after 5 April 2019, although I accept that from time to time [the child] would return to her for the weekend.  I am not satisfied it was sufficiently regular to establish any particular pattern.

8. I agree the new care determination should be 100% to [Mr A] from 5 April 2019 in these circumstances (but note [Mr A] does not get the benefit of the increased determination until 24 July 2019) and 0% in respect of Ms Bruno.  I make this determination pursuant to section 49 of the Act in respect of Ms Bruno and section 50 of the Act in respect of [Mr A].

9. I further note that the objection officer has identified that the Department was or is considering a further subsequent change to care arrangements from September 2019, but that matter is not before me.

DECISION

The decision under review is affirmed.