Butcher and Palmerstone (Child support)

[2020] AATA 2681

Butcher and Palmerstone (Child support) [2020] AATA 2681 (9 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018986

APPLICANT:  Mr Butcher

OTHER PARTIES:  Child Support Registrar

Ms Palmerstone

TRIBUNAL:Member J D’Arcy

DECISION DATE:  9 June 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 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

BACKGROUND

1. This review concerns the care percentages used in a child support assessment made by the Department of Human Services (now Services Australia) – Child Support (Child Support) for [Child 1], the son of Mr Butcher and Ms Palmerstone.

2. From 1 August 2018 to 20 November 2019 Ms Palmerstone had 100% care of [Child 1].

3. On 21 June 2019 consent orders were made in the Federal Circuit Court of Australia about [Child 1]’s care. The orders specified three stages of care. In the first stage from 21 June 2019 to 20 November 2019 Mr Butcher had no overnight care; from 21 November 2019 to 21 May 2020 he had one night of care; and from 22 May 2020 his nights of care increased.

4. On 16 December 2019 Child Support determined that from 21 November 2019 Ms Palmerstone would have 86% care of [Child 1] and Mr Butcher would have 14% of care based on the above order.

5. Ms Palmerstone objected on the basis that Mr Butcher’s work and travel commitments would prevent him from having 14% of care, having missed two overnight care events on 5 and 12 January 2020.

6. Ms Palmerstone’s objection was allowed. Based on the care period from 21 November 2019 to 21 May 2020 Child Support determined that Mr Butcher had 27 nights of care – being a total of 26 nights in the period less one night for the Mother’s Day weekend and an additional two nights on 24 December 2019 and 31 December 2019. However, the court order stated that the father’s time with [Child 1] would be suspended during the period of his travel and absence. So when the nights of 5 and 12 January 2020 were deducted the total number of nights in the care period were 25 nights or 13% of care.

7. On 5 May 2020 Mr Butcher applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal).

8. Child Support provided Mr Butcher, Ms Palmerstone and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (124 pages).

9. The hearing took place with Mr Butcher and Ms Palmerstone by telephone on 9 June 2020.

ISSUES

1. The issues which arise in this case are:

   ·      whether there should be a change to the care percentages used in a child support assessment for the period; and, if so,

   ·      what care percentages should be used?

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [Child 1]?

1. Mr Butcher stated that he understood the reasoning behind Child Support’s decision as noted in paragraph 6 above. He submitted that [Child 1]’s care should be assessed at 14% for two reasons. Firstly, 25 nights out of 182 nights results in a care percentage of 13.7%, rounded to 14%.

2. Secondly, he had care of [Child 1] in April and May 2020 during the day on six additional days, being Tuesdays between 10am and 6pm, and not 3pm to 6pm according to the court order. These additional hours of care should be included in the assessment.

3. The tribunal explained to Mr Butcher in the hearing that section 54D of the Child Support Assessment Act 1989 (the Assessment Act) states that a percentage of care must be rounded up to the nearest whole percentage if it is greater than 50% and rounded down to the nearest whole percentage if it is less than 50%. Consequently, 13.7% is rounded down to 13%.

4. Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child.

5. In the present case Ms Palmerstone stated she had kept a record of the additional hours of care that Mr Butcher provided to [Child 1], as follows:

   21 April     9 AM to 6:30 PM        9.5 hours

   28 April     10 AM to 6:30 PM      8.5 hours

   5 May      12 PM to 6:30 PM      6.5 hours

   12 May     12 PM to 6:30 PM      6.5 hours

6. Ms Palmerstone strongly opposed those additional hours being used to increase Mr Butcher’s percentage of care.

7. The tribunal preferred Ms Palmerstone’s evidence about the additional hours of care because she had kept a written record of the additional dates and hours of care.

8. The tribunal found that the additional 19 hours of care provided over four Tuesdays (over and above the three hours specified in the court order) should not be included in the assessment of Mr Butcher’s percentage of care. They are not included in the court orders; they were ad hoc days on which Mr Butcher offered to care for [Child 1] during the lockdown for COVID-19 to assist Ms Palmerstone to work; and it is not anticipated that Mr Butcher will continue to care for [Child 1] for more than three hours on a Tuesday. In addition, 19 hours of additional care over a six-month period is insufficiently significant to change the percentage of care.

9. The tribunal concluded that nights of care is the best measure of the percentage of care for [Child 1].

10. From 21 November 2019 to 21 May 2020 the tribunal determined that Mr Butcher had a pattern of care reflected in 13% of care of [Child 1] and Ms Palmerstone had 87% of care.

Should the existing care determinations be revoked?

1. The law relevant to this review is contained in the Assessment Act and the Child Support Registration and Collection Act 1988 (the Registration and Collection Act).

2. Child Support makes determinations of each parent’s percentage of care under sections 49 to 54L of the Assessment Act. These provisions require Child Support to determine each parent’s percentage of care when it first makes a child support assessment and revokes a determination because of the changes in the pattern of care for a child.

3. Section 50 applies 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”.

4. Under these sections, Child Support is able to make care decisions on the basis of what happened up until the change in care is considered and what is likely to happen after the change in care.

5. Revocations of an existing determination of a percentage of care are covered by sections 54F, 54G and 54H of the Assessment Act. Sections 54F and 54G deal with mandatory revocations when certain conditions apply. Section 54H of the Assessment Act allows for a discretionary revocation of an existing determination of a percentage of care even if there has been no change to the cost percentage.

6. The tribunal relied on a care period from 21 November 2019, the date on which Mr Butcher notified of the change of care to 21 May 2020 because the pattern of care under review changed from 22 May 2020 under the court order, allowing Mr Butcher an increased percentage of care.

7. The tribunal found that Mr Butcher’s percentage of care for [Child 1] would be 13% from 21 November 2019 to 21 May 2020, which results in a change to the cost percentage. Therefore the existing determination of the percentage of care must be revoked under section 54F of the Assessment Act.

What is the date of the change to the care percentages?

1. On 21 November 2019 Mr Butcher notified Child Support of the change in care of [Child 1] according to stage 2 of the court order.

2. As Mr Butcher notified of the change in care within 28 days of 21 November 2019 then the percentage of care of 14% should be revoked from 20 November 2019 and Ms Palmerstone’s percentage of care of 86% should also be revoked from the same date. The new percentages of care of 13% for Mr Butcher and 87% for Ms Palmerstone take effect from 21 November 2019.

DECISION

The decision under review is affirmed.