Clancy and Tranter (Child support)

[2019] AATA 1738

Clancy and Tranter (Child support) [2019] AATA 1738 (23 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015728

APPLICANT:  Mr Clancy

OTHER PARTIES:  Child Support Registrar

Ms Tranter

TRIBUNAL:Member R Anderson

DECISION DATE:  23 April 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. Mr Clancy and Ms Tranter are the parents of [Child 1] and [Child 2]. The child support assessment was registered with the Department of Human Services – Child Support (the Department) on 15 March 2004. Mr Clancy is the parent liable to pay child support to Ms Tranter in respect of the children.  The period under review commences after [Child 1] ceased to be a child of the assessment. This review is only in relation to the care of [Child 2].

2. Departmental records indicate that Ms Tranter has been attributed with a percentage of care for [Child 2] of 86% and Mr Clancy attributed with a percentage of care of 14% since 1 July 2008.  The level of care has been based on actual care, despite consent orders being made in July 2013 in the Family Court of Australia at Melbourne. 

3. On 22 October 2018, Ms Tranter contacted the Department to notify of a change in care of [Child 2] such that she should be attributed with 93% care from 1 October 2018 and Mr Clancy with 7% care.  On 23 October 2018, an officer of the Department decided to accept Ms Tranter’s application for a change in the registered care of [Child 2] on the basis that both parents agreed.

4. On 1 November 2018, Mr Clancy lodged an objection to the decision of 23 October 2018. On 19 December 2018, an objections officer of the Department decided to disallow the objection. Consequently, on 8 January 2019, Mr Clancy lodged an application with this tribunal for an independent review of the objections officer’s decision.

5. The matter was heard on 23 April 2019.  Mr Clancy and Ms Tranter both participated by conference telephone and gave oral evidence to the tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by the Department numbered 1 to 80 and documents provided by Ms Tranter numbered B1 to B25.

ISSUES

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

2. The issues which arise in this case are:

   ·       Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

   ·       Should a new determination of a percentage of care be attributed to Mr Clancy and Ms Tranter in respect of [Child 2] from 1 October 2018?

   ·       If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to the Department of a change of care arrangement.  The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.  The tribunal’s task on review is the same and is to stand in the shoes of the original decision maker.

2. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care.  The care period is such period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act).  Mr Clancy gave oral evidence that the care changed in October 2018.  While Ms Tranter initially advised the Department of the care change being from 1 October 2018, she maintains that the care change commenced in July 2017. The Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed.  This policy is not binding on the tribunal and the tribunal can determine a different care period.  In this case, the tribunal is satisfied that an appropriate "care period" is twelve months from the day upon which Ms Tranter notified the Department of the change in care.  That is, 22 October 2018 to 21 October 2019.

10.The primary decision maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period).  In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Department.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Department up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Department. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Department - so that a new primary care percentage decision can be considered, and made if appropriate. 

11.The provisions in Division 4 of Part 5 of the Act require the Department (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage decision can be made.

12.Section 51 of the Act is applicable if a care arrangement (as defined in subsection 3(1) of the A New Tax System (Family Assistance) Act 1999) is in place and not being adhered to, IF, the parent with reduced care has taken reasonable action to ensure compliance with the care arrangement.  There is no dispute in this case that Mr Clancy has taken no action to enforce the care as set out in the court order of July 2013.  Therefore, section 51 of the Act is not applicable. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked.  Therefore, the next issue is whether the current care determination can be revoked.

Issue one – Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

1. Subsection 54F(1) of the Act provides in relevant part, that in circumstances where there is no care agreement in place, the current care decision has been made under section 49 or 50 of the Act and the Registrar (or, tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is more than 14% for at least one parent and results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages, then the current care decision must be revoked.

2. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for Mr Clancy and Ms Tranter of percentages of care for [Child 2], being 14% and 86% respectively, made in accordance with section 50 of the Act.  There is also no dispute that on 22 October 2018, Ms Tranter notified the Department of a change in the level of care provided to [Child 2] from 1 October 2018. Both parties agreed that the actual care taking place in respect of [Child 2] from 1 October 2018 did not correspond to the care registered with the Department. Therefore, the first criterion is satisfied.

3. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

4. As determined above, the care period is 22 October 2018 to 21 October 2019.  The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to the Department, being 22 October 2018. It is not necessarily appropriate to assess care based on what happened from initial notification to the Department up to the time of the tribunal’s hearing. 

17.The tribunal discussed with the parties the expected care of [Child 2] going forward from 22 October 2018. Mr Clancy told the tribunal that he does not dispute that his care of [Child 2] has been less than 14% since 1 October 2018.  He further stated that at 17 years of age, [Child 2] is not a baby and should be given the choice as to who he stays with and when.  Furthermore, he is a sociable young man and often prefers to attend social events rather than spend the night with him, which is understandable.  Mr Clancy maintains that the parents should simply be flexible with the arrangements in accordance with [Child 2]’s preferences. 

18.Ms Tranter gave oral evidence that she finds it frustrating when care plans change, in particular in respect of school holidays.  She further stated that it is often her who collects [Child 2] from parties on a night where he would ordinarily stay with Mr Clancy.

1. The tribunal pointed out to Mr Clancy that attribution of care below 14%, regardless of what it is, will have no impact on his child support liability.  As he accepts that his actual care of [Child 2] from 1 October is less than 14% and will likely remain as such until the end of the child support assessment, all parties agreed that it would be futile to waste time and effort in preparing further evidence in an attempt to quantify the expected pattern of care from 22 October 2018 more exactly.  Therefore, as agreed, the tribunal finds that the likely pattern of care in respect of [Child 2] from 22 October 2018 is 7% attributed to Mr Clancy and 93% attributed to Ms Tranter.

2. The next issue for the tribunal to consider is if a new care percentage is determined under section 50, whether the parent’s costs percentage changes. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.  Under the child support assessment based on the existing percentage of care determinations at 1 October 2018, the cost percentages of Mr Clancy and Ms Tranter were 24% and 76% respectively.  If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of Mr Clancy and Ms Tranter would be 0% and 100% respectively.  Accordingly, the tribunal is satisfied that, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(b) of the Act. 

3. As neither parent has 0% care of [Child 2], the tribunal is satisfied that section 54G of the Act is not applicable in this case, thereby satisfying the third criterion under paragraph 54F(1)(c) of the Act.

4. In addition, in this case, section 51 does not apply for the purposes of paragraph 54F(1)(d) of the Act.

5. As all of the requirements of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care.

6. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect.  The date of effect depends on whether the Department was notified of the care change within 28 days after it occurred. On the evidence before it the tribunal accepts that the care change advised by Ms Tranter took effect from 1 October 2018.  As the notification was made within 28 days after the change in care occurred, the revocation of the existing determination takes effect in accordance with subparagraph 54F(3)(a) of the Act, being 30 September 2018, the day before the change of care day. 

Should a new determination of a percentage of care be attributed to Mr Clancy and Ms Tranter in respect of [Child 2]?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Clancy and Ms Tranter in respect of [Child 2].  The tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for [Child 2].  These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 86% care of [Child 2] to Ms Tranter and 14% care to Mr Clancy should be revoked under section 54F and that during the care period commencing 1 October 2018, Mr Clancy and Ms Tranter were each likely to have a pattern of care in respect of [Child 2] of 7% and 93% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

From what date should the administrative assessment be amended to reflect the change?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care.  The percentage of care applies to each day in a child support period on and from the “application day”.  In accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.  The tribunal has revoked the existing determinations with effect from 30 September 2018.  Therefore, the tribunal finds that the new determination applies from 1 October 2018.

DECISION

The tribunal affirms the decision under review.