Foskett and Child Support Registrar (Child support)

[2019] AATA 1199

Foskett and Child Support Registrar (Child support) [2019] AATA 1199 (7 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/MC015549

APPLICANT:  Miss Foskett

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Hewson

DECISION DATE:  7 March 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision to make new determinations of the percentages of care of the child, to reflect that Miss Foskett had a percentage of care of 58% and [Mr A] had a percentage of care of 42%. The date of effect of the new determination is 23 August 2018.

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 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. Miss Foskett and [Mr A] are the parents of a son aged 3 (the child), in respect of whom there is a child support assessment. This application is about the percentages of care for the child used in the child support assessment.

2. From 3 November 2015, the Department of Human Services – Child Support (the Department) recorded that Miss Foskett had a percentage of care of the child of 100% and [Mr A] had a percentage of care of 0% (the existing care).

3. On 23 August 2018, [Mr A] advised the Department of a change in the care of the child, so that from 20 June 2018 he had a percentage of care of the child of 57% and Miss Foskett had a percentage of care of 43%. Miss Foskett did not dispute that the care had changed, but stated that the change was from 22 June 2018 and she disagreed with the extent of [Mr A’s] care of the child.

4. On 11 September 2018, the Department made a decision to make new percentage of care determinations for the child, to reflect that from 22 June 2018 [Mr A] had a percentage of care of the child of 57% and Miss Foskett had a percentage of care of 43%. The date of effect of the change in the care was 23 August 2018.

5. On 18 September 2018, Miss Foskett lodged an objection to the care decision of 11 September 2018. The objection was considered by an objections officer who, on 17 November 2018, disallowed the objection.

6. On 4 December 2018, Miss Foskett lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 7 March 2019. Miss Foskett spoke to the tribunal by conference telephone. [Mr A] did not apply to be a party to the application. The Child Support Registrar did not attend the hearing. As well as the evidence of Miss Foskett, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.Section 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)   The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. As set out above, the Department was notified on 23 August 2018 of a change in the care of the child, from 20 June 2018. [Mr A] advised that he expected to have 57% of the care of the child, and that Miss Foskett would have 43% of the care.

3. At the hearing Miss Foskett said she and [Mr A] were living in the same house until early June 2018. [Mr A] was working and she was caring for the child. After she moved out they agreed that [Mr A] would have some of the care of the child as he had stopped working. She said this was never more than three nights a week, on a Friday, Saturday and Sunday night. Miss Foskett said the care arrangements were organised through Facebook Messenger. She went back through her records and was able to compile a list of all of the dates the child was in [Mr A’s] care, which she sent to the tribunal. Miss Foskett also referred to a letter from her mother, attesting to the accuracy of her care records, and to a letter from an intake officer from the Family Relationship Centre at Shepparton, in relation to Miss Foskett’s efforts to initiate mediation in relation to the care of the child. Miss Foskett said [Mr A] has not had any care of the child since 30 September 2018. She agreed, however, that at the date of the notification of a change in the care, the pattern was for him to have three nights of care a week, although it did not always work out that way.

4. The tribunal did not have the opportunity to speak to [Mr A]. He was invited to be a party to the application, but did not respond to the invitation. Apart from his initial notification of a change in the care, there is no information in the documents to support the extent of care of the child claimed by [Mr A]. The tribunal found Miss Foskett’s evidence to be credible. She agreed that a change in the care of the child occurred, and that the pattern from about 20 June 2018 was for [Mr A] to have care for three nights a week. Having regard to the available evidence, including the additional information provided by Miss Foskett, the tribunal concluded that from 20 June 2018 the pattern of care for the child that was likely in the care period to 19 June 2019 was for Miss Foskett to have a percentage of care of 58% and [Mr A] to have a percentage of care of 42%.

5. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54F is relevant in this case. It provides that the registrar must revoke the existing care determinations 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; if an exception to the use of actual care in section 51 or 52 applied, the interim period has ended; and if care was determined on the basis of the actual care, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply; and section 54G doesn’t apply.

6. In this case, the tribunal found that there were existing percentage of care determinations made under sections 49 and 50 in relation to the child, and that the Registrar was notified that the actual care of the child did not correspond with the percentage of care in the existing care determination from 20 June 2018. The tribunal was satisfied that an exception to the use of actual care under section 51 or 52 does not apply in this case and section 54G does not apply.

7. The tribunal accepted that, at the date of notification of the change in the care, on 23 August 2018, [Mr A] had established a pattern of care of the child based on the care he had had in the period from 20 June 2018, which amounted to a percentage of care of 42% and Miss Foskett had the remaining care, which amounted to a percentage of care of 58%.

8. The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for the child under section 54F of the Act. 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 change within 28 days after it occurred. The tribunal found that notification of the change in care was made more than 28 days after 20 June 2018 and, therefore, revocation of the existing determinations takes effect in accordance with subsection 54F(3), on 22 August 2018, being the day before the notification of the change in care.

9. As the existing determinations have been revoked, new determinations of Miss Foskett and [Mr A]’ care, under section 50 of the Act, must be made. To make new determinations, the actual care of the children that was likely to occur during the care period (in this case from 20 June 2018 to 19 June 2019) must be considered. The tribunal determined that Miss Foskett’s percentage of care of the child was likely to be 58% and [Mr A]’ percentage of care was likely to be 42%, with effect from 23 August 2018.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision to make new determinations of the percentages of care of the child, to reflect that Miss Foskett had a percentage of care of 58% and [Mr A] had a percentage of care of 42%. The date of effect of the new determination is 23 August 2018.