Halkett and Halkett (Child support)

[2022] AATA 4006

Halkett and Halkett (Child support) [2022] AATA 4006 (4 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024281

APPLICANT:  Mr Halkett

OTHER PARTIES:  Child Support Registrar

Ms Halkett

TRIBUNAL:Member P Jensen

DECISION DATE:  4 October 2022

DECISION:

The decision under review is set aside and, in substitution, Mr Halkett is recorded as providing 11% care for [Child 1] and [Child 2] with effect from 21 April 2021 and Ms Halkett is recorded as providing 89% care for [Child 1] and [Child 2] with effect from 16 March 2022.

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. Mr Halkett and Ms Halkett are the parents of [Child 1] and [Child 2]. A child support case was registered in November 2019 with the Child Support Agency (“the CSA”). In December 2019, court orders were made concerning the care that the parents were to provide for the children. The CSA recorded Mr Halkett as providing 22% care and Ms Halkett as providing 78% care pursuant to those orders.

2. On 16 March 2022, Ms Halkett reported a change in care. The CSA made a care decision. Mr Halkett promptly objected to that decision. An objections officer allowed the objection and made the following care decision:

   ·   during the period from 21 April 2021 to 27 July 2021, Mr Halkett is recorded as providing 22% care and Ms Halkett is recorded as providing 78% care for the children; and

   ·   from 28 July 2021, Mr Halkett is recorded as providing 11% care and Ms Halkett is recorded as providing 89% care for the children.

3. Mr Halkett promptly applied to the Tribunal for further review. I heard the matter on 4 October 2022. Mr Halkett and Ms Halkett gave sworn evidence via an MS Teams video link. During the hearing they confirmed the following: a change in care occurred on 21 April 2021, and from that date, Mr Halkett’s pattern of care equated to 11% care and Ms Halkett’s pattern of care equated to 89%.

4. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Care decisions usually reflect the parents’ actual patterns of care: sections 49 and 50 of the Act. However, the Act relevantly provides that in certain circumstances, a care decision can be made which reflects the patterns of care that a court order required the parents to provide rather than the patterns of care that the parents actually provided: section 51 of the Act. Such care decisions are called interim determinations. The first dot-point of the objections officer’s decision is an interim determination. The issues in dispute in the current case are whether an interim determination can be made and, if so, what particular interim determination should be made.

5. The making of a care decision involves the revocation of the existing care determinations (which in this case are the determinations to record particular percentages of care from December 2019) and the making of new care determinations. Section 54G of the Act provides for the revocation of the existing care determinations if certain requirements are satisfied, including a requirement that Ms Halkett reported the change in care that occurred on 21 April 2021 within a period that was “reasonable in the circumstances”. Ms Halkett explained that Mr Halkett continued to pay his assessed rate of child support until February 2022 and she preferred to not disrupt the status quo by reporting the change in care to the CSA. Her position is understandable, but she did not report the change in care within a period that was “reasonable in the circumstances” for the purpose of section 54G. The requirements of that section are not satisfied. Section 54F of the Act also provides for the revocation of the existing care determinations and it is clear that the requirements of that section are satisfied. The existing care determinations are revoked pursuant to section 54F.

6. The term “maximum interim period” is defined in section 5 of the Act. The maximum interim period in the current case is a period that stated on 21 April 2021 and ended 26 weeks later, i.e. on 20 October 2021. An interim determination cannot be made if the change in care is reported after the expiration of the maximum interim period and the existing care determinations are revoked pursuant to section 54F: Castle and Jonas (Child Support) [2022] AATA 1702.[1] In the absence of an interim determination, and in light of the fact that neither parent reported the change in care within 28 days of its occurrence,[2] Mr Halkett’s reduction in care to 11% care has effect from when the change in care occurred, i.e. 21 April 2021, and Ms Halkett’s increase in care to 89% care has effect from when the change in care was belatedly reported, i.e. 16 March 2022: sections 49, 50, 54B and 54F of the Act.

   [1]Published at 54B(2)(c)(ii) and 54F(3)(b) of the Act

DECISION

The decision under review is set aside and, in substitution, Mr Halkett is recorded as providing 11% care for [Child 1] and [Child 2] with effect from 21 April 2021 and Ms Halkett is recorded as providing 89% care for [Child 1] and [Child 2] with effect from 16 March 2022.