Cantrill and Lydon (Child support)

[2023] AATA 4285

Cantrill and Lydon (Child support) [2023] AATA 4285 (17 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/BC026257

APPLICANT:  Miss Cantrill

OTHER PARTIES:  Child Support Registrar

Mr Lydon

TRIBUNAL:Member J Nalpantidis

DECISION DATE:  17 November 2023

DECISIONS:

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     from 6 August 2022 to 11 September 2022, Mr Lydon had 100% care of  [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 0% care of [Child 2], [Child 1] and [Child 3].

·     from 12 September 2022, Mr Lydon had 35% care of [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 65% care of [Child 2], [Child 1] and [Child 3].

The date of effect of the Tribunal’s decision is 6 August 2022.

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 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. This review is about a change to the percentage of care determinations for Mr Lydon and Miss Cantrill in respect of the children [Child 1] (born September 2013), [Child 2] (born February 2015) and [Child 3] (born April 2016) (the three children).  Mr Lydon and Miss Cantrill are the parents of [Child 1], [Child 2] and [Child 3].  A child support assessment has been in place between Mr Lydon and Miss Cantrill under a private collect arrangement since 18 January 2022.

2. On 12 August 2022 Mr Lydon applied to Services Australia – Child Support (Child Support) for a child support assessment for the three children on the basis that he had 100% care of the three children.  

3. On 28 November 2022, Child Support made the decision to apply the Family Assistance Office (FAO) care decision to record the care of the three children, as 65% to Miss Cantrill and 35% to Mr Lydon, notified on 23 October 2022, to the child support assessment (the original decision).

4. On 31 December 2022 Mr Lydon objected to this decision on the basis he had 100% care of the three children from 6 August 2022 to 11 September 2022 and Ms Cantrill had 0% care.  Mr Lydon acknowledged the care arrangement changed from 12 September 2022 in line with the Court Order dated 29 July 2022, with the three children in Miss Cantrill’s care for nine nights per fortnight and in Mr Lydon’s care for five nights per fortnight.   

5. On 11 May 2023 a Child Support objections officer allowed the objection and made the decision to reflect the care of the three children between 6 August 2022 and 11 September 2022 as 100% to Mr Lydon and 0% to Miss Cantrill, for the child support assessment, effective from the start date of the liability being 12 August 2022 (the objection decision).

6. On 15 June 2023 Miss Cantrill applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted hearings into both applications on 17 November 2023.  Mr Lydon and Miss Cantrill participated via MS Teams audio and gave evidence on affirmation.  Child Support provided the Tribunal and the parties with relevant papers (345 pages).  Miss Cantrill provided additional material A1 to A42, Mr Lydon provided additional material B1 to B9; the additional material was exchanged with the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for the three children, which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

What was the care of the three children from 6 August 2022?

13.There is no dispute that prior to 6 August 2022, the three children were in Miss Cantrill’s 100% care, living with her in New South Wales, while Mr Lydon continued to live in [City 1].  

14.The objections officer referred to a care determination made by the FAO, notified on 23 October 2022, that Mr Lydon had a care percentage of 35% for the three children and Miss Cantrill had a care percentage of 65%. 

15.On 29 July 2022 a Court Order stated that Miss Cantrill was to return the three children to Mr Lydon on 6 August 2022, and if Miss Cantrill returns to live in [City 1] on or before 22 January 2023, a nine/five pattern of care is to commence.

16.Section 54K of the Act (and section 35T of the A New Tax System (Family Assistance) Act 1999) provides that where there is a child recognised in a child support assessment, and a person receives family tax benefit (FTB) for the same child, and a care determination needs to be made in respect of the child, the determination will be made by either the Registrar or the Secretary.  Once the determination is made, the single care determination applies for both child support and FTB purposes. 

1. The Child Support papers show that on 28 November 2022, Child Support accepted a care determination made by the FAO, notified on 23 October 2022, that Mr Lydon had a care percentage of 35% for the three children and Miss Cantrill had a care percentage of 65%.  The Child Support papers show that the commencement of the Child Support case between Mr Lydon and Miss Cantrill was on 18 January 2022 on a private collect basis.  

2. Mr Lydon acknowledged that Miss Cantrill returned to [City 1] with the three children on 6 August 2022 and from that date until 11 September 2022 he had 100% care of the three children when care reverted to that provided in the Court Order dated 29 July 2022.  Mr Lydon acknowledged that from 12 September 2022, the care of the three children has been nine nights with Miss Cantrill (65%) and five nights with Mr Lydon (35%).    

3. Miss Cantrill gave evidence in line with the Court Order dated 29 July 2022, she returned to [City 1] on 6 August 2022 and Mr Lydon had 100% care of the three children from that date until she was able to secure accommodation on 12 September 2022.  Ms Cantrill confirmed that from 12 September 2022 the care of the three children was in line with the Court Order, with the three children being in her care for nine nights (65%) and in Mr Lydon’s care for five nights (35%), and this has continued to be the case since that date.

20.Mr Lydon and Miss Cantrill gave consistent evidence about the three children’s care.  The parties confirmed that Mr Lydon had 100% care of the three children from 6 August 2022 to 11 September 2022, and from 12 September 2022 and ongoing, the care changed to 35% to Mr Lydon and 65% to Miss Cantrill.  

1. Miss Cantrill referred the Tribunal to more recent assessments by Child Support, including an assessment dated 10 July 2023 for the period 1 August 2023 to 31 October 2024, which continue to show the three children are assessed as being in Mr Lydon’s 100% care, despite it being agreed between the parties that the care of the three children since 12 September 2022 has been 65% to Miss Cantrill and 35% to Mr Lydon. 

2. Mr Lydon gave evidence that he has never told Child Support that he has had 100% care of the three children after 12 September 2022; he has simply followed the Court Order and he cannot explain how Child Support has come up with the figure of 100% care of the three children to him.  Mr Lydon gave evidence that he told Child Support this is an error but they told him they could not do anything about it because it was before the Tribunal. 

3. The Tribunal observed that the objections officer noted from the information submitted a subsequent change of care took place on 11 September 2022, which Child Support has lodged as a new event to be considered, with a date of notification of 31 December 2022.

4. The Tribunal has found that prior to 6 August 2022 the three children were in Miss Cantrill’s care in New South Wales, while Mr Lydon was in [City 1].  The care arrangements of the three children then changed on 6 August 2022 when Miss Cantrill and the three children returned to [City 1] and the three children were in Mr Lydon’s 100% care from 6 August 2022 until 11 September 2022.  The Tribunal has found that from 12 September 2022 the care arrangements changed such that the care for the three children was 65% to Miss Cantrill and 35% to Mr Lydon.

5. In this case the Tribunal accepts the care arrangements for the three children between the parties changed on 6 August 2022 and subsequently on 12 September 2022.

6. The issue of making two care determinations was considered in Re Child Support Registrar v DQFY [2023] FCA 601, Federal Court of Australia (Division 2), which considered the decision made by the Administrative Appeals Tribunal Tier 2 to revoke a determination and make new care determinations that related to two timeframes, having regard to the evidence before it. This judgment determined the Tribunal can make a care determination for two time periods in a single care determination if such a determination is supported having regard to all the evidence before the Tribunal, and not only the evidence before the objections officer, and that in doing so it is not necessary to revoke each care percentage decision and make a new determination.

7. Accordingly, the Tribunal is satisfied that there was a change in the care of the three children from 6 August 2022 and 12 September 2022, and the previous care determination should have been revoked.

Date of effect of the Tribunal’s decision

1. According to section 87AA of the Registration Act, if a person objects to a care percentage decision within 28 days after they are notified of the decision and upon review, and they have a favourable decision, the date from which the decision takes effect is the date of the original care percentage decision. If an objection to a care percentage decision is allowed and different care percentages will be determined, the assessment will be amended to use those percentages.

2. Subsection 87AA(2) of the Registration Act provides that if the objection is more than 28 days after the person is notified of the decision, and special circumstances prevented the person from lodging their objection within 28 days, the care percentage objection decision may have effect from the day the original decision took effect.

3. In this case, Mr Lydon applied for a change of care percentage of the three children on 12 August 2022.  The original decision was made on 28 November 2022 and the parties were issued notices advising of the decision and their objection rights.  Mr Lydon objected to the decision.  The objections officer listed the date Mr Lydon lodged an ‘Objecting to a Child support decision form’ as 31 December 2022.  The Child Support records of contact show that on 23 December 2022 Mr Lydon contacted Child Support to ask for an explanation of the decision letter and advised he objected to the decision.  The Tribunal is satisfied that Mr Lydon objected to the decision and sought review of the original decision within 28 days of the original decision on 28 November 2022. 

4. Accordingly, the date of effect of the Tribunal’s decision in respect of Mr Lydon having a percentage of care of 100% and Miss Cantrill having a percentage of care of 0% for the three children is 6 August 2022, and from 12 September 2022, Mr Lydon had 35% care of the three children and Miss Cantrill had 65% care of the children.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     from 6 August 2022 to 11 September 2022, Mr Lydon had 100% care of [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 0% care of [Child 2], [Child 1] and [Child 3].

·     from 12 September 2022, Mr Lydon had 35% care of [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 65% care of [Child 2], [Child 1] and [Child 3].

The date of effect of the Tribunal’s decision is 6 August 2022.