Elson and Child Support Registrar (Child support)

[2017] AATA 2951

Elson and Child Support Registrar (Child support) [2017] AATA 2951 (18 December 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/AC012446

APPLICANT:  Mr Elson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  18 December 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – Temporary change to pattern of care – 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 concerns the care percentages used in a child support assessment.

2. Ms Bond and Mr Elson are the parents of [Child 1] (born 2003). An assessment of child support was based on a care percentage of 86% for Ms Bond and a care percentage of 14% for Mr Elson.

3. On 7 April 2017 Mr Elson contacted the Department of Human Services – Child Support (the Department) and advised he had full care of [Child 1] from 4 April 2017. Ms Bond advised the Department that there was no change to the pattern of care of [Child 1] who had been with Mr Elson for two nights and would be returning to her care on the weekend.

4. On 11 May 2017 a decision was made not to change the care percentages.

5. Mr Elson objected to the decision and on 13 July 2017 an objections officer disallowed the objection. On 5 September 2017 Mr Elson made an application to this Tribunal for a review of that decision.

6. The application was heard on 18 December 2017. Mr Elson attended the hearing by telephone. The Child Support Registrar was not represented at the hearing. Ms Bond did not apply to be added as a party to the review. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (folios 1 to 102) copies of which were provided to Mr Elson.

ISSUES

1. The issues the Tribunal must decide are:

   ·     whether the existing care percentages used in the child support assessment for [Child 1] should be revoked; and if so

   ·     the date from which they have effect.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988. In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called "particulars of the assessment". This includes the "percentage of care" and a "cost percentage" for each parent in relation to each child.

2. The Department makes determinations of each parent's percentage of care in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent's percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Care percentages must be revoked under section 54G of the Assessment Act if:

   ·     a parent has had no care of a child or care that is less than regular care, despite the other parent making the child available; and

   ·     the other parent notifies the Department within a period that is considered reasonable in the circumstances.

4. The term "regular care" is defined in subsection 5(2) of the Assessment Act as a care percentage of at least 14% but less than 35%.

5. If section 54G does not apply care percentages must be revoked under section 54F of the Assessment Act if:

   ·     the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child; and

   · the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

6. Sections 49 and 50 of the Assessment Act require the Department, or this Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person's care in a care period.

Was there a change to the pattern of care for [Child 1]?

1. There are no written agreements regarding the care of [Child 1].

2. Mr Elson stated that Ms Bond's parents brought [Child 1] to his home on 4 April 2017 and said Ms Bond was having problems caring for him and he would need to have him. Ms Bond and Mr Elson lived in the same suburb. Mr Elson did not ring Ms Bond to discuss [Child 1’s] care as they find it hard to talk civilly and he did not arrange to collect [Child 1’s] personal possessions and clothes from Ms Bond's home. There had been issues in the past with [Child 1’s] behaviour and periods where he had stayed with Mr Elson. Since early 2017 [Child 1] had made his own decisions about how often he spent time with Mr Elson.

3. [Child 1] stayed with Mr Elson and his family during the Easter school holiday period. He returned to school at the commencement of term 2 on 26 April 2017. He was suspended for 20 days on his first day back for violence. Mr Elson rang Ms Bond and her parents and told them he could not have [Child 1] live with him as his partner runs a family day care business and the nature of the violence meant [Child 1] could not be at home with the young children.

4. The Tribunal accepts Mr Elson’s oral evidence that [Child 1] was in his care from around 4 April 2017 to 26 April 2017 when he returned to the care of Ms Bond.

5. In relation to changes in care, the Department's policy document, the Child Support Guide relevantly provides at Chapter 2.2.2:

   One-off block of 100% care

   Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (subsections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination.

6. [Child 1] was in the care of Mr Elson for less than four weeks. It was unexpected and temporary. The Tribunal finds there was no common expectation about future care as Mr Elson and Ms Bond did not discuss the events that led to [Child 1] staying with Mr Elson or how long the arrangement might last. By the time the original decision was made by the Department, [Child 1] had returned to the care of Ms Bond. The Tribunal finds the increased care did not demonstrate a change to the pattern of care that is likely to be provided by the parents in the care period commencing 4 April 2017.

DECISION

The decision under review is affirmed.