Greacy and Greacy (Child support)

[2022] AATA 3051

Greacy and Greacy (Child support) [2022] AATA 3051 (14 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023629

APPLICANT:  Mr Greacy

OTHER PARTIES:  Child Support Registrar

Ms Greacy

TRIBUNAL:Member T Bubutievski

DECISION DATE:  14 June 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that there was no change of care on 8 January 2022. Mr Greacy’s care percentage remained at 65% and Ms Greacy’s at 35%.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 assessment of care used in a child support assessment. Ms Greacy and Mr Greacy have two children (17-year-old twins of different genders) for whom Mr Greacy is assessed to pay child support. The care of the children is shared between the parents and the care was reflected to be 65% to Mr Greacy and 35% to Ms Greacy until the change of care to which this application relates. This application relates to the care of their son.

2. On 27 January 2022 Ms Greacy contacted the Child Support Agency (the Agency) and advised that their son had been in her 100% care since 8 January 2022. Further, she advised that the care of the children had changed to being 50% to her and 50% to Mr Greacy from 6 November 2021.

3. Mr Greacy was contacted about this and advised that Ms Greacy had some additional care of the children during the school holidays, but that he did not accept that there had been a care change to 50% from 6 November 2021. On 28 January 2022 Ms Greacy withdrew her claim in relation to the period of 50%/50% care. The issue of her having 100% care of their son from 8 January 2022 proceeded and on 28 January 2022 the Agency decided that there had been a care change of their son to 100% to Mrs Greacy from 8 January 2022. The previous care percentages of 65% to Mr Greacy and 35% to Ms Greacy was revoked from that date.

4. On 7 February 2022, Ms Greacy advised the Agency that the care of the children had reverted to its normal pattern when they returned to school on 2 February 2022. Mr Greacy agreed that this was the case.

5. Nonetheless, a decision that Ms Greacy had 100% care of their son between 8 January 2022 and 1 February 2022 remained.

6. Mr Greacy objected to this decision. On 24 March 2022 an Agency objections officer disallowed Mr Greacy’s objection. Their son’s care remained reflected as 100% to Ms Greacy for the relevant period.

7. On 4 April 2022 Mr Greacy made an application to the Social Services and Child Support Division of this Tribunal for a review of that decision. The Tribunal added Ms Greacy as a party to the application. Ms Greacy advised the Tribunal that she did not wish to participate in the hearing.

8. The application was heard in Sydney on 14 June 2022. Mr Greacy attended the hearing by telephone and gave sworn evidence. Ms Greacy did not attend the hearing, but she did provide some evidence to the Tribunal in writing.

ISSUES

1. The issue the Tribunal must decide is whether or not there was a change in care for Mr Greacy and Ms Greacy’s son on 8 January 2022. If the Tribunal decides that there was a change of care, the date of effect of this decision would be 8 January 2022.

2. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). In the usual course of events, the Agency (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.

3. The various levels of care are defined in section 5 of the Assessment Act. The rate of child support payable by person is dependent upon both their percentage of care and their cost percentage set out in section 55C of the Assessment Act.

4. The Agency makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Agency 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.

5. 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 require the Registrar, 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.

7. The date of effect of any revocation of care percentages, or changes to the percentages used, depends on when the Agency was notified of or otherwise became aware of the change. A change in care takes effect on the day that it occurred if the Agency is notified within 28 days of that change, otherwise it takes effect on the date of notification (subsection 54F(2) of the Assessment Act).

CONSIDERATION

Issue 1 - Was there a change in care?

1. Mr Greacy told the Tribunal that Ms Greacy asked the children if they would like to spend more time with her in the Christmas 2021 holidays. The children are old enough to make their own decisions about which parent they spend time with, and they agreed to spend an extra day a week with Ms Greacy for a short period over the holidays. Mr Greacy said that there was no issue with them doing that and there was no mention of child support. Mr Greacy said that he did not even bother to take note of the extra dates that they spent with their mother as it was a temporary arrangement. He was, however, certain that it did not commence until after the beginning of the school holidays, not in November.

2. Their son contracted COVID-19 in January 2022. Mr Greacy explained that in his house he has himself, his partner and the children and he also frequently has his step-grandchildren in the residence. Their daughter had recently commenced work. Mr Greacy said that as Ms Greacy was living alone he asked if their son could isolate at her house to try and protect the people in his house. Ms Greacy agreed to this arrangement. Mr Greacy said that their son did isolate with Ms Greacy, but in total it was only for around nine days. During this time, their daughter stayed with Mr Greacy and did not have her usual time with her mother. Mr Greacy said that in total Ms Greacy would only have had the care of their son for an extra week over the period.

3. Mr Greacy told the Tribunal that he pays private school fees for the children and also meets a number of their extracurricular expenses. He felt that it was not right that the Agency had changed the care percentages on the basis of a temporary, short-term arrangement.

4. Mr Greacy was under the impression that Ms Greacy had withdrawn her entire claim in relation to the care change, not just the 50% period. He was puzzled as to why the matter had continued. The Tribunal was not in a position to explain this from the documents it had available.

5. Ms Greacy did not attend the hearing, but she did write a statement to the Tribunal in the form of an email. In that statement, she says that she understood that she had dropped the case and withdrawn her claim. She confirmed that she did look after their son while he was sick with COVID-19. She says that the period for which she did this was three weeks. Ms Greacy said that the reason that this arrangement was made was because:

   … it was much easier for him to isolate at my house rather than him being at his father’s home as [his] twin sister [our daughter] just started a casual job after school. So, rather risk her getting sick by being in the same household as her at their fathers house, [our son] decided to stay at my house to isolate.

   There were no permanent changes to the shared child care and this was only a temporary situation due to the circumstances…

6. The child support system is set up to recognise changes in care between the parents. For the Tribunal to be satisfied that a change of care occurred on 8 January 2022, it must also be satisfied that that there was a change in the pattern of care for the care period. A care period can be any length of time, but it is usual for a care period to be 12 months long. In this case, there was a short period of time in which Ms Greacy had increased care of both children in the Christmas 2021 school holidays leading up to their son contracting COVID-19. There was then a short block of time in which she had 100% care of their son and no care of their daughter. The care arrangements then went back to their normal pattern.

7. The Tribunal could not be satisfied that this temporary change in the care pattern amounted to a change of care. In total, it was only for a few weeks in each pattern. The fact that Ms Greacy temporarily had 100% care of their son does not mean that there was a change of care although in some situations a temporary period of 100% care can be recognised as a care period of a shorter duration. The Agency’s own policy document, the Child Support Guide, deals with this very issue at clause 2.2.2:

One-off block of 100% care

Where a parent or non-parent 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 (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make 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. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

1. The Tribunal is satisfied that Ms Greacy’s unexpected 100% care of their son during his isolation period does not meet the requirements for being recognised as a short care period related to an unexpected circumstance. It was not of long duration. It was certainly not more than four weeks in length. During that period Mr Greacy had 100% care of their daughter. After that brief period of time the care arrangements returned to their normal pattern. The Tribunal finds that the Registrar was in error in forming a view that a change of care occurred on 8 January 2022. There was no change of care on 8 January 2022. The care percentages should not have been changed.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that there was no change of care on 8 January 2022. Mr Greacy’s care percentage remained at 65% and Ms Greacy’s at 35%.