Colburn and Leech (Child support)

[2023] AATA 1652

Colburn and Leech (Child support) [2023] AATA 1652 (8 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC025302

APPLICANT:  Ms Colburn

OTHER PARTIES:  Child Support Registrar

Mr Leech

TRIBUNAL:Member M Sutherland (Presiding)

Deputy President K Synon

DECISION DATE:  8 May 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Colburn has 75% care and Mr Leech 25% care of [the child] from 1 January 2022 effective from 17 March 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 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 is about a change to the percentage of care determinations for Ms Colburn and Mr Leech in respect of their daughter [the child] (born 10 May 2014).

2. There has been a child support assessment in place since 2017. From November 2017 the child support assessment reflected Ms Colburn as having 51% care and Mr Leech as having 49% care of [the child]. There is no court order or written agreement setting out the percentages of care. Mr Leech is the parent liable to pay child support.

3. On 17 March 2022 Ms Colburn advised Services Australia – Child Support (Child Support) of a change to the care arrangements stating that from 1 January 2022 Ms Colburn would have care of [the child] for 272 nights (75% care) and Mr Leech 93 nights (25% care).

4. On 13 April 2022 Child Support made the decision not to change the percentage of care to reflect that Ms Colburn provided 272 nights (75% care) and Mr Leech 93 nights (25% care).

5. On 3 October 2022 Ms Colburn objected to this decision and on 8 November 2022 Child Support disallowed the objection (the objection decision).

6. On 20 December 2022 Ms Colburn applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 May 2022. Ms Colburn and Mr Leech gave evidence on affirmation by conference telephone. Child Support provided the Tribunal and the parties with papers relevant to the matter, 152 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the 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). In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

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 child] 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

1. Ms Colburn told the Tribunal that she and Mr Leech get on and have been able to resolve the matter. Mr Leech now accepts that care was 75% to her and 25% to him from 1 January 2022.

2. Mr Leech told the Tribunal that he initially disagreed with the care assessment of 75% care to Ms Colburn as he initially thought he would have more care, this did not eventuate. As time went on he realised that actual care was 75% to Ms Colburn and 25% to him. He had informed Child Support accordingly and could not understand why a hearing was taking place.

3. The Tribunal is satisfied that in this case, section 54G of the Act does not apply. This provides for the revocation of an existing percentage of care if a parent is to have at least regular care, but despite the other parent making the child available, the parent has had no care or less than regular care (regular care means care that is at least 14% but less than 35%). The Tribunal is satisfied that in this case section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by a new percentage of care determination.

4. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. There is no dispute between the parties that care changed on 1 January 2022 to 75% to Ms Colburn and 25% to Mr Leech, a new pattern of care was established from this date.

5. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Colburn and Mr Leech under section 50 of the Act.

2. The Tribunal finds that a new pattern of care for [the child] commenced from 1 January 2022 with Ms Colburn having 75% and Mr Leech 25% care.

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Colburn notified Child Support of the change in care on 17 March 2022. As this is more than 28 days after the change occurred on 1 January 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care, Ms Colburn from the day before the date of the change of care being 31 December 2021, and for the parent with reduced care, Mr Leech from the day before the date the change occurred, being 16 March 2022.

2. The new determinations can be made from 1 January 2022 for Ms Colburn and from 17 March for Mr Leech.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Colburn has 75% care and Mr Leech 25% care of [the child] from 1 January 2022 effective from 17 March 2022.