Davison and Child Support Registrar (Child support)

Davison and Child Support Registrar (Child support) [2020] AATA 2036 (12 May 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/AC018758
APPLICANT:  Mr Davison
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member Y Webb
DECISION DATE:  12 May 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the child are 21% to Mr Davison and 79% to Ms [A] from 1 January 2018 applied to the child support assessment from 12 September 2019.

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 – whether the amended law applies – the law that prevailed prior to 23 May 2018 applies – 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

This review is about the percentages of care of Mr Davison and Ms [A] in relation to their daughter (“the child”). The child is now 15 years old but this decision relates to a period beginning in 2018.
The child support assessment was first registered on 15 May 2006.
Since 1 September 2010 the percentages of care for the child were recorded by the Department of Human Services (“Child Support Agency”) as 87% care to Ms [A] and 13% care to Mr Davison.
There are no court orders or written parenting plans in relation to the care of the child.
On 12 September 2019 Mr Davison contacted the Child Support Agency and advised that from the beginning of 2018 he had care of the child for all of the school holidays in one year and from Boxing Day in alternate years.
The Child Support Agency attempted to contact Ms [A] regarding the care of the child but did not succeed.
On 17 October 2019 a delegate of the Registrar decided not to change the care percentages of the child. The officer did so on the basis that there was insufficient evidence that a change in care had occurred.
On 30 October 2019 Mr Davison objected to that decision. He contended that he had the care of the child for the whole of the school holidays except for every second year when he had care from Boxing Day.
On 23 March 2020 an objections officer partly allowed Mr Davison’s objection deciding that Mr Davison had 22% care and Ms [A] 78% care from 1 January 2018.
On 31 March 2020 Mr Davison requested review by the Administrative Appeals Tribunal (“the Tribunal”).
Mr Davison attended the hearing by way of a telephone conference on 12 May 2020 and gave sworn evidence.
Ms [A] was invited to participate in the review but she declined and was removed as a party.

ISSUES

The issues for the Tribunal to determine are:
a)What were the care arrangements in relation to the care of the child in the relevant care period?
b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.
Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.
The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. In this case the Tribunal is satisfied that a reasonable care period is a two-year period because the Tribunal is satisfied that there is a clear difference in the care arrangements in alternate years. Although a two-year care period applies in this case, the Tribunal notes that this will continue to apply unless or until a further care determination is made. (In this case a further care determination was made on 2 November 2019.)
In circumstances where there are no court orders or written parenting plans the care is established by considering the actual pattern of care that is taking place.
Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
In this case, Mr Davison did not contend that nights were an unsuitable measure of the care of the child. There is also no evidence within the Child Support Agency papers that Ms [A] was opposed to nights being the determinant of care. Hence the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.
The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 87% to Ms [A] and 13% to Mr Davison.
For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care (1 January 2018) and up to the time of the original determination by the Registrar (17 October 2019) and evidence of the pattern of care the person is, or was, likely to have going forward at that point in time.
[1] Paragraph 50(1)(a) of the Assessment Act
Mr Davison told the Tribunal that his care of the child varied in alternate years. He stated that in year one (which occurred in 2018) he had care of the child for all of the school holidays. He stated that in year two, he had care of the child for all of the school holidays except that in the Christmas holidays he had care of the child from Boxing Day. Mr Davison stated that he did have some other nights of care during the year but these were unplanned and unpredictable and were dependent on him and Ms [A] reaching agreement from time to time about additional nights. He stated that he did not consider that these additional nights formed part of a pattern of care.
The Tribunal found Mr Davison to be genuine and credible in giving his evidence. It accepts his statements about the care of the child. Because the Child Support Agency, despite its efforts, was not able to make contact with Ms [A] there were no statements from Ms [A] within the Child Support Agency papers. Hence, the Tribunal relied on the information provided by Mr Davison which it is satisfied is truthful.
The Tribunal finds that the pattern of care which was occurring was that in year one, Mr Davison had care of the child for the whole of the school holidays. The Tribunal finds that in year one therefore Mr Davison had care for 84 nights (12 weeks X 7). In year two, the Tribunal finds that Mr Davison had care for 72 nights on the basis that in the Christmas holidays the child was in the care of Ms [A] from the end of term four and up to and including Christmas Day. This meant that Mr Davison had care from Boxing Day for the rest of the Christmas holidays plus care in all of the remaining school holidays for the year. In 2019 the expected last day of term was 13 December. This meant that Ms [A] was expected to have care from 14 December 2019 up to and including Christmas Day. This is 12 days. Therefore Mr Davison had 72 nights in year two. Over a two-year care period this means that Mr Davison had 156 nights of care out of a total of 730 nights (84 + 72 = 156). As a percentage this is 156/730 = 21.3% and rounded down to 21% in accordance with section 54D of the Assessment Act.
Mr Davison was adamant that the care had been in accordance with the above pattern for a long period of time and certainly from 1 January 2018. The Tribunal accepts his evidence and finds that there was a change of care from 1 January 2018 and that from that date Mr Davison had 21% care of the child and Ms [A] had 79% care.
A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.
In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

Prior to 1 January 2018, the pre-existing care was that Ms [A] had 87% care and Mr Davison 13% care. Ms [A] had a cost percentage of 100% and Mr Davison of nil. The Tribunal’s determination will mean that Ms [A] will have a care percentage of 79% and a cost percentage of 76%. Mr Davison will have a care percentage of 21% and a cost percentage of 24%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s decision will mean that neither parent has less than 14% care and in addition Mr Davison did not notify a change of care within the usual 28-day period), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F.
Section 54F of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 1 January 2018. The Tribunal also found that Mr Davison notified the Child Support Agency of the change on 12 September 2019.
The provisions in the Act relating to care were substantially amended to take effect from 23 May 2018 for change of care days that happen on or after 23 May 2018. As the change in care of the child commenced on 1 January 2018, the amended legislation at 23 May 2018 is not applicable in this case.
However, the Tribunal considered the further amendments to the Act that took effect from 1 July 2018, specifically in relation to revocation dates when notification of the change in care occurred more than 28 days after the change in care commenced. The application provisions for the changes from 1 July 2018 state that the changes apply to change of care days that happen on or after 1 July 2018 and also to changes of care days that happen before 1 July 2018 but notified 26 weeks after 1 July 2018 (notified after 30 December 2018). In this case the change of care occurred prior to 1 July 2018 (on 1 January 2018) and the change was notified on 12 September 2019.
The amended legislation of 1 July 2018 repealed the substituted subsection 54F(3) of 23 May 2018. In the Tribunal’s view, if the substituted section 54F of 23 May 2018 did not apply, then it follows that any future replacement legislation in respect of section 54F also does not apply.
Hence the Tribunal finds that as the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) (of the old legislation) on 11 September 2019, being the day before the Child Support Agency was notified of the care change.
Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Davison’s and Ms [A]’s percentages of care under section 50 of the Assessment Act.
Section 54B of the Act sets out the date of effect of the new determinations of percentages 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 old legislation) the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The Tribunal has revoked the existing determinations with effect from 11 September 2019. Therefore the new determinations apply to the child support assessment from 12 September 2019.

DECISION:

[2020] AATA 2036

12 May 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness

Appeal

Remedies