Greeson and Perch (Child support)

[2024] AATA 885

Greeson and Perch (Child support) [2024] AATA 885 (25 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC027181

APPLICANT:  Mr Greeson

OTHER PARTIES:  Child Support Registrar

Mrs Perch

TRIBUNAL:Member P Noonan

DECISION DATE:  25 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – no change to existing percentage of care determinations – decision under review affirmed

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. Mr Greeson and Mrs Perch are the separated parents of three children, including [the child] who was born in 2008. Since 6 February 2020, Services Australia – Child Support (Child Support) has made administrative assessments of child support under the Child Support (Assessment) Act 1989 (the Act).

2. On 4 March 2022, Mr Greeson advised Child Support that there had been a change in the care arrangements for the child from 4 February 2022. The matter was discussed with both parents and, on 6 May 2022 a Child Support employee decided that the care percentages applying in the child support assessment from 4 March 2022 should record Mr Greeson as having 51% care of the child and Mrs Perch as having 49% care of the child. This date was given by Mrs Perch and previously agreed to by Mr Greeson.

3. Mr Greeson’s objection is recorded as being lodged on 27 July 2023. On 11 December 2023 the objections officer decided that the objection should be disallowed. Mr Greeson applied to this Tribunal seeking an independent review of Child Support’s decision on 12 December 2023.

4. A hearing into the application for review was held by the Tribunal on 25 March 2024. Mr Greeson and Mrs Perch both participated in the hearing by telephone, and both gave evidence on affirmation during the hearing. A representative of the Child Support Registrar did not participate in the hearing. The Tribunal had before it relevant documents provided to it by Child Support pursuant to sections 37 of the Administrative Appeals Tribunal Act 1975 (471 pages).

ISSUES

1. The statutory provisions relevant to this review application are contained in the Act.

2. The issue for the Tribunal to determine in this application for review is what should be the care percentages applying in the child support assessment for [the child].

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula that is set out in Part 5 of the Act, which contains variables such as the parents’ adjusted taxable incomes, the number of children, their ages and their percentages of care.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their child during a care period. Where the care of the child has changed this may result in a decision to revoke the care percentages with respect to the child and replace them with new percentages. However, to do so, the Tribunal must first determine whether the care of the child has changed.

3. The percentages of care applying in the child support assessment with respect to the child from 17 September 2020 was 100% to Mrs Perch and 0% to Mr Greeson.

4. Mrs Perch informed the Tribunal that care of the child was with her except for 7 nights from 11 or 12 January 2022 when the child was in the care of Mr Greeson for 7 nights due to her being diagnosed with Covid-19.

5. Mr Greeson agreed that he had 7 nights of care for the child in January 2022 which he recorded as being from 14 January 2022 and this was because Mrs Perch had asked him to care for the child because she had Covid-19. He contended that he then had care of the child every second week plus Thursday nights from 28 January 2022. Mrs Perch noted text messages between her and Mr Greeson on 10 February 2022 reflecting that care for all children was moving towards fortnightly weekends to Mr Greeson from 18 February 2022. There was some discussion of the child being in Mr Greeson’s care from the following Monday however subsequent texts reflect that the ongoing care arrangements of the child were still being sorted out by the parents and an agreement as to a pattern of care had not been made in mid-February 2022. As noted in the objections officer’s decision Mr Greeson has also previously reported varying dates for the claimed change of care being both 14 January 2022 and 4 February 2022. He also claimed a care change occurred from 28 January 2022 to the Tribunal.    

6. In assessing care the decision maker is concerned with deciding when a pattern of care has been established that differs from the previous care pattern. The care of January 2022 is ad-hoc or one-off care in its nature necessitated by illness to the regular carer. The Tribunal has considered third-party statements submitted by Mr Greeson and his evidence that he felt coerced into agreeing to the 4 March 2022 date. However, the third-party statements diverge from the care discussed in the texts between the parents and the evidence given, such as 7 nights’ care in January 2022, and the various commencement dates given by Mr Greeson in respect of care of the child in respect to the history of this matter.

7. The text evidence above is the best first-hand evidence before the Tribunal with respect to the care of the child. The parents’ text exchanges in February 2022 reflect that a regular pattern of care had yet to be agreed upon and established. Mrs Perch specifically stated on 10 February 2022 that proposed care during the week of the child to be given by Mr Greeson for the following week (which is a date that again diverges from the care change dates claimed by Mr Greeson in this matter), should not be taken as an ongoing arrangement due to considerations around the child’s welfare.

8. A pattern of care change from a specific date is not clearly established prior to the date of 4 March 2022 on the evidence before the Tribunal. There is therefore no basis for revoking the existing care determination.

DECISION

The decision under review is affirmed.