Givenchy and Mollini (Child support)

[2018] AATA 2284

Givenchy and Mollini (Child support) [2018] AATA 2284 (22 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013802

APPLICANT:  Miss Givenchy

OTHER PARTIES:  Child Support Registrar

Mr Mollini

TRIBUNAL:Member W Kennedy

DECISION DATE:  22 May 2018

DECISION:

CATCHWORDS

Child support – Percentages of care – Change to likely 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. Miss Givenchy and Mr Molliniare the parents of two children in respect of whom there has been a child support assessment since 13 August 2010.  [Child 1] was born in 2006 and [Child 2] was born in 2007.  This application concerns the percentages of care used in the child support assessment.

2. From 18 November 2015 the child support assessment was based on the parents equally sharing the care of the children.

3. On 2 May 2017 Mr Mollini advised the Child Support Agency of the Department of Human Services (the Department) that since 7 April 2017 he had had 100% care of the children.  Having been unable to contact Miss Givenchy, on 15 May 2017 the Department decided to accept Mr Mollini’s advice and changed the percentage of care used in the assessment to 100% by Mr Mollini with effect from 7 April 2017.

4. On 9 June 2017 Miss Givenchy objected to the decision, claiming that the arrangement of equally sharing care was continuing and that Mr Mollini had only had eight days extra care while she moved house.  After considering the evidence provided by the parents, on 5 August 2017 a Department objections officer decided to disallow the objection, finding that although the shared care arrangement may have been resumed, this would have happened some time after the events under consideration.

5. On 3 April 2018 Miss Givenchy applied to this Tribunal for a review of the Department’s decision, stating that there had only been a temporary arrangement while she moved house.  The Tribunal considered the application and determined the matter on 22 May 2018.  In considering the application the Tribunal took into account the oral evidence of Miss Givenchy and Mr Mollini together with the documentary material provided by the Department (folios 1 to 220).  At the hearing the parents advised that neither had received copies of the documents.  Both parties wished to proceed with the hearing and in the event the Tribunal determined that the parties would not be disadvantaged by not having received the documents in advance of the hearing.  Miss Givenchy and Mr Mollini both attended the hearing by conference telephone and gave their evidence under affirmations.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of the children in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the percentage of care for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parents’ percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Miss Givenchy said that Mr Mollini had had some extra care while she moved house.  She said that this was limited to the period from 7 April 2017 to 12 May 2017 and that from 12 May 2017 the shared care arrangement had resumed.  When questioned by the Tribunal Miss Givenchy acknowledged that during the week starting on 12 May 2017 she had care of the children during some days but not overnight.  She said that overnight care had resumed later.

11.  At the hearing Mr Mollini said that overnight care by Miss Givenchy had resumed eventually but that he was not sure when.  He said that it was definitely later than Miss Givenchy had suggested and that even when it had resumed it was sporadic and there was no pattern of care by Miss Givenchy.

12.  The parties are in agreement that Mr Mollini had 100% care of the children from 7 April 2017.  They both agree that Miss Givenchy’s overnight care of the children resumed some time after 12 May 2017 but they do not agree when the overnight care resumed.  Miss Givenchy has provided no documentary evidence to support her position.  In this regard the Tribunal notes that Miss Givenchy provided documents to the Tribunal registry a few minutes prior to the start of the hearing.  The Tribunal did not have access to the documents prior to or at the hearing.  Following the hearing the Tribunal examined the documents that she provided but decided that their relevance was peripheral to the matter before the Tribunal. 

13.  Miss Givenchy has been somewhat unclear as to the actual events.  On 18 May 2017 she said that Mr Mollini had had five days extra care (folio 73), on 7 June 2017 she said he had had eight days extra care (folio 75) and on 21 June 2017 she said he had had nine or 10 days extra care (folio 94).  At the hearing she said that Mr Mollini had more than two weeks extra care but was not able to say exactly how much extra care Mr Mollini had. 

14.  Mr Mollini has provided a statutory declaration dated 11 May 2017 from the Director of a childcare centre stating that the children had been in the care of Mr Mollini from 7 April 2017.  Miss Givenchy states that the statutory declaration is from a friend of Mr Mollini’s.  The document is not particularly strong evidence as the presence of children at a given childcare centre is not conclusive as to overnight care.  Moreover it is dated 11 May 2017 and it is the period subsequent to 11 May 2017 that is most relevant to the matter.  Based on all of the evidence before it the Tribunal finds that the children were in the care of Mr Mollini from 7 April 2017 and that his overnight care continued beyond 12 May 2017.

15.  The Child Support Guide, an administrative policy guide for decision makers prepared by the Department of Human Services, states at reference 2.2.2 that a change of care may be considered to have occurred if a person misses three consecutive “care events”.  In this case Miss Givenchy missed her normal care for the period from 14 to 21 April 2017, for the period from 28 April to 5 May 2017 and for the period from 12 to 19 May 2017.  The Tribunal notes that during the latter period Miss Givenchy had care of the children during some days, but as section 54A of the Act states that care is based on the nights that a child is in a person’s care the Tribunal considers that she missed that care period also. 

16.  The Tribunal is not required to follow administrative policy, however under the doctrine found in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 the Tribunal must follow administrative policy unless there is a cogent reason to not do so. The Tribunal finds that there is no cogent reason to not follow policy in this case and, accordingly, the Tribunal finds that a change of care occurred on 7 April 2017.

17.  Subsection 54G(1) of the Act provides that the Department may revoke a percentage of care determination if a number of criteria are met:

Determination must be revoked if there is less than regular care etc.

(1)      If:

(a)      a responsible person (the first responsible person) for a child was to have at   least regular care of the child during a care period under a determination (the   first care determination) made under section 50; and
                    (b)      the first responsible person has had no care of the child, or has had a pattern of   care that is less than regular care of the child, despite another responsible   person for the child making the child available to the first responsible person; and
                    (c)      a determination of the other responsible person's percentage of care for the child   has been made under section 50; and

(d)      the other responsible person notifies the Registrar or the Secretary of the matter   referred to in paragraph (b) of this subsection within a period that the Registrar   considers is reasonable in the circumstances;

the Registrar must revoke both determinations.
     Note: The Registrar must make new determinations under section 49 or 50 to replace the    revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

18.  The Tribunal is satisfied that a determination has been made under section 50 of the Act that Miss Givenchy was to have at least regular care, thus satisfying paragraph 54G(1)(a).  The Tribunal has determined that Miss Givenchy had less than regular care despite the children being made available by Mr Mollini, thus satisfying paragraph 54G(1)(b).  A determination has been made under section 50 of the Act establishing Mr Mollini’s percentage of care, thus satisfying paragraph 54G(1)(c).  Mr Mollini advised the Department on 2 May 2017, which was within a reasonable period of the change, that the actual care does not correspond with the existing percentage of care determinations, thus satisfying paragraph 54G(1)(d).  As all paragraphs of subsection 54G(1) of the Act are satisfied the Registrar must revoke the existing determinations.

19.  Subsection 54G(2) of the Act determines the date of effect of the revocation of the existing determinations:

(2)      The revocation of each determination takes effect:

(a)      if the first responsible person never established a pattern of care in accordance   with the first care determination--at the beginning of the application day for that   determination; or
                    (b)      if the first responsible person established a pattern of care in accordance with the   first care determination but later ceased the established pattern of care--at the   end of the day before the day on which the person ceased the previously   established pattern of care.

20.  In accordance with paragraph 54G(2)(b) the date of revocation is the day before the day on which the pattern of care changed.  Thus the existing determination is revoked on 6 April 2017.

21.  Section 50 of the Act provides that the Department must determine new percentages of care in the following circumstances:

Determination of percentage of care - responsible person has had etc. a pattern of care for a child

(1)  This section applies if:

….

(b)  the Registrar:

(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

(2)The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

22.  The existing determination has been revoked, thus satisfying subparagraph 50(1)(b)(i).  Subparagraph 50(1)(b)(ii) and subsection 50(2) require the Tribunal to consider the likely pattern of care that Mr Mollini and Miss Givenchy will have of the children in a care period.  The Tribunal has decided under section 49 of the Act that Miss Givenchy did not establish a pattern of care. 

23.  The Tribunal has determined that the most appropriate care period is twelve months from the date the Secretary became aware of the change in care.  The Tribunal finds that at the time of the change Mr Mollini was likely to have 100% care of the children.  The Tribunal notes that there may have been a further change of care sometime subsequent to 19 May 2017.  At the hearing Miss Givenchy said that she had lodged a change of care application with the Department, however there is no evidence of such an application in the hearing papers.  In any case the decision of the Tribunal does not affect any decision of the Department relating to any subsequent change of care.

24.  Section 54B of the Act provides that the determination will have effect from the day immediately after the date of revocation of the earlier percentage of care determination.  Thus the date of effect is 7 April 2017. 

25.  The Tribunal’s decision is the same as that of the Department objections officer and, accordingly that decision is affirmed.

DECISION

The decision under review is affirmed.