Denton and Denton (Child support)

[2022] AATA 1170

Denton and Denton (Child support) [2022] AATA 1170 (1 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022716

APPLICANT:  Ms Denton

OTHER PARTIES:  Child Support Registrar

Mr Denton

TRIBUNAL:Member D Lambden

DECISION DATE:  1 March 2022

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. This review is about the percentages of care of Ms Denton and Mr Denton in relation to their child [Child 1] (their preferred name is [name deleted]) (“the child”) who is 15 years old.

2. A child support assessment was first registered with Services Australia (“Child Support Agency”) on 28 July 2009 and child support has been collectable by the Child Support Agency since 4 July 2015.

3. Prior to the Child Support Agency making a decision on 3 September 2021 the pre-existing percentages of care for the child were recorded by the Child Support Agency to be 100% care to Ms Denton and 0% care to Mr Denton.

4. On 17 June 2021 Mr Denton contacted the Child Support Agency and advised that there had been a change in the care of the child. He advised that the child was now in his care 100%; that Ms Denton’s care was 0% and that this had been the case since 25 May 2021 (C1-page 8). Mr Denton contacted the Child Support Agency on 9 July 2021 and again stated that he had been providing 100% care of the child since 25 May 2021.

5. The Child Support Agency spoke with Ms Denton on 16 July 2021 regarding the asserted care change and she disagreed with the information provided to the Child Support Agency by Mr Denton that he has had 100% care of the child since 25 May 2021. Ms Denton provided the Child Support Agency with a letter on 23 July 2021 (C1-page 48) stating that the child lived with her and that the child spent more time with Mr Denton after he started living in Melbourne.  Evidence she provided with her letter included an email from Mr Denton dated 4 May 2021 (C1‑page 49), an email from the child’s tutors dated 20 July 2021 (C1-page 50), a letter dated 21 July 2021 to the Child Support Agency from her neighbour (C1-page 51) and a letter to Ms Denton dated 21 July 2021 from [a] [Hospital] (C1-page 52).

6. An officer of the Child Support Agency spoke with Ms Denton on 7 August 2021 and she advised that she was willing to accept 50/50 care of the child with Mr Denton from 25 May 2021. The officer did not succeed in contacting Mr Denton on 7 August 2021 and wrote to Mr Denton in a letter of that date requesting that he provide proof by 17 August 2021 to support his claim that the child has been in his 100% care  since 25 May 2021. On 29 August 2021 Mr Denton contacted the Child Support Agency and stated that the child has been in his 100% care from 25 May 2021 until 17 July 2021 when the child went to Ms Denton’s care and since 18 July 2021 care has been 50/50. On 30 August 2021 Mr Denton provided the Child Support Agency with a statutory declaration from his wife [which] stated that the child had been in Mr Denton’s 100% care from 25 May 2021 until 18 July 2021 when the child had been in Mr Denton’s 50% care. An officer of the Child Support Agency contacted Ms Denton on 1 September 2021 and explained that Mr Denton had provided a statutory declaration from a third party confirming he had 100% care of the child from 25 May 2021 to 17 July 2021 and Ms Denton was advised to provide by 2 September 2021 any further evidence that she had overnight care of the child between 25 May 2021 to 17 July 2021.

7. An officer of the Child Support Agency decided on 3 September 2021 that there had been a change in the care of the child and that from 25 May 2021 to 17 July 2021 Mr Denton had 100% care and Ms Denton had 0% care of the child and from 18 July 2021 Mr Denton had 51% care and Ms Denton had 49% care of the child.

8. On 6 September 2021 Ms Denton objected to both care decisions.

9. On 11 November 2021 an objections officer disallowed Ms Denton’s objections and affirmed the original decisions.

10. On 12 November 2021 Ms Denton requested a review by the Administrative Appeals Tribunal (the Tribunal) in relation to the date of effect of the decision by the Child Support Agency in relation to Ms Denton and Mr Denton sharing the care of the child on a 50/50 basis.

11. Ms Denton and Mr Denton attended the hearing by way of a MS Teams audio hearing on 9 February 2022. Ms Denton gave evidence on affirmation and Mr Denton gave sworn evidence.

12. The Child Support Agency provided papers relevant to this matter and these were marked (as a bundle) as Exhibit C1 (pages 1–179). Prior to the hearing Mr Denton provided the following documents that were shared with Ms Denton:

    ·     An email to the tribunal from Mr Denton dated 28 December 2021 (marked as Exhibit B1 and B2)

    ·     A statutory declaration from Mr Denton dated 28 December 2021 (marked as Exhibit B3)

    ·     A letter from Ms Denton dated 21 December 2021 (marked as Exhibit B4).

13. The Tribunal adjourned the matter to research the law.

14. The Tribunal considered all of the evidence available to it in the context of the relevant legislation and on 1 March 2022 the tribunal proceeded to determine the matter.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to 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

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. 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 percentage determined must be the percentage that corresponds with the care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act.

4. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care 54F(1)(a); and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care 54(1)(b)

5. Section 54A provides that the Registrar may assess the level of care based on the number of nights that a parent has during a care period.

6. In this case, neither parent contended that nights were an unsuitable measure of the care of the child and the tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

7. In addition, both parents agreed that there were no court orders or written parenting plans in existence during the care period and the tribunal therefore considered the actual care of the child. Therefore no interim periods apply. The Tribunal is also satisfied that 54G does not apply.

8. The initial issue which the tribunal needs to determine is whether the pattern of care changed for the child. At the hearing Ms Denton and Mr Denton agreed that he had 100% care of the child and she had 0% care of the child from 25 May 2021 up to 17 July 2021, and that decision is not under review. The tribunal finds that the existing pattern of care for the purpose of this review is 100% care of the child to Mr Denton and 0% care of the child to Ms Denton from 25 May 2021 to 17 July 2021 and the issue is whether that pattern of care changed.

9. 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”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child(ren) changed and reflecting the pattern of care that a person has had, or is likely to have, during the care period. The tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply only unless or until a further care determination is made).

10. In relation to the commencement of the care period, the Child Support Agency decided that it started on 29 August 2021 as Mr Denton advised the Child Support Agency on that date that the child was in his and Ms Denton’s care on a 50/50 basis from 18 July 2021. Taking the available information into account the tribunal agrees that the care period commenced on 29 August 2021.

11. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child” the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

12. The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor [2013] AATA 562; 137 ALD 426 the AAT stated that:

    …a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

13. At the hearing both Ms Denton and Mr Denton agreed that for the period 25 May 2021 to 17 July 2021 the child was in Mr Denton’s 100% care and Ms Denton’s 0% care and in both of their care on a 50/50 basis from 18 July 2021.  Mr Denton stated at the hearing he was disputing the calculation by the Child Support Agency in relation to the amount of child support that he was required to pay based on income details the Child Support Agency was using to determine his liability. Ms Denton stated to the tribunal that she was disputing the date of 29 August 2021 being used as the commencement of the care period because the child’s care changed on 18 July 2021. She stated that she was entitled to be paid child support payments from 18 July 2021.

14. Subsection 54F(3) 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 18 July 2021 and the Tribunal is satisfied that the new pattern of care was shared 50/50 with both parents. The Tribunal was satisfied that the Child Support Agency was notified of the change on 29 August 2021. The Tribunal was not satisfied that there was an earlier notification of a change of care when according to the evidence provided by the Child Support Agency Ms Denton spoke with the Child Support Agency on 7 August 2021 (C55 to C56). As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

15. Ms Denton’s care of the child increased and according to subparagraph 54F(3)(b)(i) of the Assessment Act her existing care percentage of 0% was revoked from 28 August 2021 being the day before the Child Support Agency was notified of the care change and the new care percentage of 51% commenced on 29 August 2021.

16. Mr Denton’s care decreased and according to subparagraph 54F(3)(b)(ii) of the Assessment Act his existing care percentage of 100% was revoked from 17 July 2021 being the day before the change of care day and the new care percentage of 49% commenced on 18 July 2021

17. The new care determinations will take effect for child support purposes from 29 August 2021. It is made pursuant to section 50 of the Act. That determination is that Mr Denton has 50% care of the child and Ms Denton has 50% care.

18. The Tribunal notes that a further care determination has been made after this period which is not subject of this review.

19. As the Tribunal has reached the same conclusion as the objections officer, the decision under review is affirmed.

DECISION

The decision under review is affirmed.