Graves and Graves (Child support)

[2022] AATA 2379

Graves and Graves (Child support) [2022] AATA 2379 (15 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023617

APPLICANT:  Mr Graves

OTHER PARTIES:  Child Support Registrar

Mrs Graves

TRIBUNAL:Member J D'Arcy

DECISION DATE:  15 June 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 7 March 2022 Mr Graves is recorded to have 17% of care of [the child] and from 18 December 2021 Mrs Graves is recorded as having 83% of care of [the child].

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 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

1. This review concerns the care percentages used in a child support assessment made by Services Australia for [the child], the son of Mr Graves and Mrs Graves.

2. Mr Graves and Mrs Graves have had a registered child support assessment for [the child] since 20 January 2021.

3. Prior to the decision made on 14 March 2022, Services Australia recorded the care of [the child] as 87% to Mrs Graves and 13% to Mr Graves from 6 January 2021.

4. On 8 March 2022 Mr Graves advised that he would have care of [the child] for 52 nights a year from 19 December 2021.

5. On 8 March 2022 Services Australia recorded the care of [the child] as 86% to Mrs Graves 14% to Mr Graves from 19 December 2021.

6. Mrs Graves objected to the decision and on 31 March 2022 the objection was allowed and the care of [the child] was recorded as 87% to Mrs Graves and 13% to Mr Graves from 6 January 2021.

7. On 4 April 2022 Mr Graves applied for a review of this decision with the Administrative Appeals Tribunal (the tribunal).

8. Services Australia provided Mr Graves and Mrs Graves and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (201 pages).

9. The hearing took place with Mr Graves and Mrs Graves by telephone on 15 June 2022.

ISSUES

1. The issues which arise in this case are:

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

   ·      what care percentages should be used; and

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [the child]?

1. There is no parenting plan or court order in place concerning the care of [the child].

1. Mr Graves told the tribunal that he was seeking a change in the record of care from April 2021 to April 2022 because the care records indicate that he had more than 52 nights of care during that period.

2. The tribunal explained that the decision to be determined by the tribunal related to the period from 19 December 2021 according to his original request for a change in care (page 126) and the decision made by the objections officer.

3. On 8 March 2022 Mr Graves advised Services Australia that he had 52 nights of care of [the child] from 19 December 2021.

4. In the hearing Mr Graves and Mrs Graves agreed that Mr Graves had care of [the child] on the following nights:

   ·    19 December 2021 to 15 January 2022 – 27 nights with Mr Graves accepting that he did not have care of [the child] for the night of 15 January 2022;

   ·    8 April 2022 to 18 April 2022 – 10 nights; and

   ·    10 June 2022 to 14 June 2022 – four nights.

5. Mr and Mrs Graves have agreed that Mr Graves will have care of [the child] from 1 July 2022 to 14 July 2022 for 13 nights.

6. [The child]’s care for the September school holidays has not yet been agreed. Mr Graves would like to have [the child] for seven nights from 23 September 2022 to 3 October 2022. Mrs Graves would like to have [the child] for the holidays because she has not had holiday time with him recently.

7. The tribunal finds the parties are agreed that from 19 December 2021 to 14 July 2022 Mr Graves will have had 54 nights of care of [the child].

8. Mr Graves’s diary for September 2021 shows that he had care of [the child] for seven nights during the school holidays. Mrs Graves’s diary also records the same number of nights, which represents one half of the school holidays.

9. Given that Mr Graves has cared for [the child] for seven nights in the September/October 2021 school holidays, it is reasonable to expect that he will have a similar period of care between the agreed care period in July and the end of the care period on 18 December 2022 because otherwise he would have not seen [the child] for five months. Thus, the tribunal is satisfied that in the care period from 19 December 2021 to 18 December 2022 Mr Graves will have care of [the child] for 61 nights or 17% care.

10. The tribunal was satisfied that there was a change to the care pattern for [the child] with Mrs Graves having 83% care and Mr Graves having 17% care.

Should the existing care determinations be revoked?

1. The law 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 (the Registration and Collection Act).

2. Services Australia makes determinations of each parent’s percentage of care under sections 49 to 54L of the Assessment Act. These provisions require Services Australia to determine each parent’s percentage of care when it first makes a child support assessment and when it revokes a determination because of the changes in the pattern of care for a child.

3. Section 49 applies if the parent “has had, or is likely to have, no 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”.

4. Section 50 applies if the parent “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”.

5. Under these sections, Services Australia is able to make care decisions on the basis of what happened up until the change in care is considered and what is likely to happen after the change in care.

6. Section 54F of the Assessment Act provides that an existing determination of a percentage of care must be revoked, if the care taking place does not correspond with the person’s existing percentage of care for the child and the new care percentage would affect the cost percentage. Section 54F can only apply if section 54G does not apply.

7. Section 54G of the Assessment Act provides that an existing determination of a percentage of care must be revoked if, under a new care percentage determination, one of the parents who was previously assessed to have regular care (that is, more than 14% of care) would have less than regular care despite the child being made available to them.

8. The tribunal found that Mr Graves’s pattern of care would be 17% in the care period under review, which is an increase from 13% in the decision made on 31 March 2022.

9. As the change in care will lead to a change in the existing cost percentage, the tribunal must revoke the existing determination of care under section 54F of the Assessment Act.

What is the date of effect of the change?

1. The date of effect of a care change is set out in subsection 54F(3) of the Assessment Act. Under that section, existing care percentages should be revoked from the day before the change of care for the parent whose care has decreased, and the day before notification for the parent whose care has increased. Therefore, Mr Graves’s percentage of care for [the child] is 17% from 7 March 2022 and Mrs Graves’s percentage of care is 83% from 18 December 2021.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 7 March 2022 Mr Graves is recorded to have 17% of care of his son, [the child] and from 18 December 2021 Mrs Graves is recorded as having 83% of care of [the child].