Greeson and Jikinson (Child support)

[2021] AATA 3172

Greeson and Jikinson (Child support) [2021] AATA 3172 (28 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021555

APPLICANT:  Miss Greeson

OTHER PARTIES:  Child Support Registrar

Mr Jikinson

TRIBUNAL:Member K Dordevic

DECISION DATE:  28 July 2021

1. The decision of the tribunal and the reasons for the decision were delivered orally on 28 July 2021.

2. The following paragraphs are the reasons for the tribunal’s decision.

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

1. Ms Greeson (the mother) and Mr Jikinson (the father) are the parents of one child. This application concerns their child’s care arrangements from 9 November 2020.  

2. A child support assessment was registered with the Department of Human Services (now Services Australia) – Child Support from 7 September 2015. The father reported a care change on 9 November 2020, advising that he had 100% care of the child. His care change application was accepted on 18 November 2020, with the care record reflecting that he had 100% care and the mother 0% care of the child on the basis of the first page of draft consent orders the father provided.

3. On 10 December 2020 the mother reported a change to the child’s care arrangements, stating that she had 18% care and the father had 82% care of the child from 20 November 2020. On 17 February 2021 Child Support refused the mother’s care change application. The mother’s objection to this decision was disallowed on 13 May 2021.

4. The mother sought review of the decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 21 May 2021.

5. The matter was heard on 28 July 2021. The mother and father appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. In reaching its decision the tribunal considered the sworn evidence of the mother and father as well as the documentation provided by Child Support (folios 1 to 270).

6. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

7. The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of care arrangements. The provisions in Division 4 of Part 5 of the Act require Child Support (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage decision can be made.

10.  Section 50 of the Act requires the primary decision maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. The tribunal’s task on review is the same.

11.  The tribunal finds that there are Family Court orders, dated 9 November 2020, which dictate that the mother is to have the following care:

·Every third weekend after school on Fridays to 5:00 pm Sundays;

·In the 2020/2021 summer holidays from 23 to 24 December 2020; and

·31 December 2020 to 7 January 2021;

·14 to 21 January 2021; and

·That the matter is adjourned to 19 February 2021 for an interim hearing.

12.  The tribunal notes that on 19 February 2021 Child Support accepted a new care change notification, amending the care record to reflect that the father provides 65% care and the mother 35% care from 25 February 2021.

13.  There is no dispute between the parents that the mother provided 26 nights of care to the child during the period 9 November 2020 to 18 February 2021, consistent with the court orders in evidence. The tribunal finds accordingly.

14.  Child Support determined that the appropriate care period is 12 months from 9 November 2020. The tribunal respectfully disagrees. The Child Support Guide states at Chapter 2.2.1 that a care period is generally a 12-month period from the day on which the actual care of a child changed. However, it goes on to state that there are some circumstances where determining the care over a different period may be more appropriate, and the Registrar (and the tribunal in its shoes) must consider the circumstances of each case.

1. In this particular matter, the parties were in highly adversarial legal proceedings, in a context where the father was withholding care and the mother was seeking a return of the child to her care. The court orders were interim only, for the period 9 November 2020 to 18 February 2021, with the matter due to return to court on 19 February 2021.

16.  Thus, the tribunal is satisfied that the relevant care period is 9 November 2020 to 18 February 2021 (102 days). The mother had 26 nights care during this period, equating to a care percentage of 25% and the father had 75% care during this same period.

17.  Subsection 54F(1) of the Act provides in part, that in circumstances where the current care decision has been made under sections 49 or 50 of the Act, if section 51 of the Act applies and the interim period has ended, the Registrar (or tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is not consistent with the existing determination of care and that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and section 54G of the Act is not applicable, then the current care decision must be revoked. The tribunal is satisfied that all five criteria under this provision are met. As such, the tribunal must revoke the existing care determination.

18.  Paragraph 54F(3)(b) of the Act states, in situations where the change was notified outside 28 days of the care change (as is the case in this matter), the date of revocation is different, dependent on whether the responsible person’s care has increased or decreased. Thus, the tribunal revokes the existing care percentages and replaces it with new care percentages of 75% to the father from 9 November 2020 and 25% to the mother from 10 December 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that:

·Ms Greeson’s care percentage of 0% is revoked and replaced with a new care percentage of 25% from 10 December 2020; and

·Mr Jikinson’s care percentage of 100% is revoked and replaced with a new care percentage of 75% from 9 November 2020.