Jenkins and Mirkin (Child support)

[2023] AATA 3290

Jenkins and Mirkin (Child support) [2023] AATA 3290 (8 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC025878

APPLICANT:  Mrs Jenkins

OTHER PARTIES:  Child Support Registrar

Mr Mirkin

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Jenkins provides 37 per cent care of [Child 1] and Mr Mirkin provides 63 per cent care from 28 June 2022 but with effect from 28 June 2022 for Mrs Jenkins and from 30 September 2022 for Mr Mirkin.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the care of the child – date of notification of care change – 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 removed 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 is about a change to the percentage of care determinations for Mrs Jenkins and Mr Mirkin in respect of their child [Child 1] (born November 2008).  Mrs Jenkins and Mr Mirkin are the parents of two children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place since 4 April 2022.

2. From 19 April 2022 the child support assessment reflected Mrs Jenkins as having 50 per cent care and Mr Mirkin as having 50 per cent care of [Child 1].

3. On 30 September 2022 Mr Mirkin notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he provides 64 per cent care of [Child 1] and Mrs Jenkins provides 36 per cent care from 28 June 2022.

4. On 12 January 2023 Child Support made the decision to record that Mrs Jenkins provides 36 per cent care of [Child 1] and Mr Mirkin provides 64 per cent care from 28 June 2022.

5. On 16 January 2023 Mrs Jenkins objected to this decision and on 28 March 2023 Child Support disallowed the objection (the objection decision).

6. On 29 March 2023 Mrs Jenkins applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 August 2023.  Mrs Jenkins and Mr Mirkin gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (310 pages).  The Tribunal received additional information from Mr Mirkin prior to the hearing and a copy was distributed to the parties (B1–B3).

ISSUES

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

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mrs Jenkins told the Tribunal that care of [Child 1] was arranged verbally between the parents and was on a week about basis.  Mrs Jenkins said changeover was originally on a Sunday night but later moved to a Friday night because [Child 1] wanted to catch the bus to her home after school.  Mrs Jenkins said this pattern of care had not changed.

2. Mrs Jenkins explained that in July 2022 she commenced a new job at a [workplace] which made it difficult for her to adhere strictly to the week about care arrangements.  Mrs Jenkins acknowledged there were times from July 2022 when she did not have a full seven nights during her week of care.  Mrs Jenkins added that towards the end of the year her work hours had become more flexible and care returned to the week about pattern by December 2022.

3. Mrs Jenkins said she felt her care had not fallen significantly below 50 per cent care even with these occasional variations to the usual pattern.  Mrs Jenkins said she did not keep records of her care but did provide Child Support with text messages from Mr Mirkin in which he acknowledged she was having week about care.  Mrs Jenkins said she also provided a third-party statement from her neighbour in relation to her care of [Child 1].

4. The Tribunal notes in evidence from Child Support a text message exchange between the parents on 7 December [2022] in relation to the care of [Child 1].  In one text message Mr Mirkin states, “Why do you make [Child 1] stay by herself in a unit with no one around for a whole week just so you can say you have custody?”  The Tribunal further notes in evidence a third party statement from [Ms A] dated 20 January 2023.  [Ms A] states she lives in the same complex as Mrs Jenkins and confirms Mrs Jenkins has care of [Child 1] on a week on/week off basis.

5. Mr Mirkin told the Tribunal he agreed that care of [Child 1] was arranged informally between the parents and had been on a week about basis.  Mr Mirkin said he kept very accurate records of his care and found that he was having increased care of [Child 1] from around 28 June 2022.  Mr Mirkin said this was when he believed care of [Child 1] first changed.

6. Mr Mirkin said it was not unusual for [Child 1] to say that she wanted to spend the weekend with him and some of her friends at his beach house or stay an extra few nights with him during the week.  Mr Mirkin said he accepted that care may have returned to shared care at a later stage but that was not relevant to the period currently under consideration.

7. The Tribunal notes in evidence calendars of care provided to Child Support by Mr Mirkin on 29 November 2022 and 30 December 2022.  These show Mr Mirkin had the following care:

   ·     June 2022 –  28, 29, 30 (three nights)

   ·     July 2022 – 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 19, 20, 21, 22, 23, 24, 25, 31 (19 nights)

   ·     August 2022 – 1, 2, 3, 4, 5, 6, 7, 8, 13, 16, 17, 18, 19, 20, 21, 22, 30, 31 (18 nights)

   ·     September 2022 – 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 22, 23, 24, 25 (20 nights)

   ·     October 2022 – 2, 3, 4, 5, 6, 7, 8, 16, 17, 18, 19, 20, 21, 22, 23, 24, 30 (17 nights)

   ·     November 2022 – 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 26, 27, 28, 29, 30 (22 nights)

   ·     December 2022 – 1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 25, 26, 27, 28, 29, 30, 31 (18 nights).

8. The Tribunal further notes in evidence a statement from [Ms B], Mr Mirkin’s mother, who states she sees Mr Mirkin and the children daily and confirms the dates in his calendar are correct.

9. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the date the actual care of the child changed. Once a care determination is made, it will continue to apply until there is a new change in the pattern of care.

10. Mrs Jenkins has told the Tribunal that care of [Child 1] was shared between the parents on a week about basis but concedes there were variations to this pattern of care after she started a new job in July 2022.  The text message exchange between the parents is dated 7 December [2022] and the Tribunal does not consider this relevant to care from the date Mr Mirkin submits that care changed.  Similarly the third party statement from [Ms A] is dated 20 January 2023 and does not relate to care from 28 June 2022.

11. Mr Mirkin argues that he began to have increased care of [Child 1] from around 28 June 2022 based on his detailed care records.  The Tribunal accepts the accuracy of the calendars of care provided by Mr Mirkin.

12. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care for [Child 1] can be determined from 28 June 2022.  The calendars of care provided by Mr Mirkin show that he provided care of [Child 1] totalling 117 nights out of the 187 nights in the period from 28 June 2022 to 31 December 2022.  This is equal to 63 per cent care.[1]

    [1] In accordance with section 54D of the Act a percentage of care must be rounded up to the nearest whole percentage if greater than 50 per cent and rounded down to the nearest whole percentage if less than 50 per cent.

13. The existing percentages of care reflected in the assessment for [Child 1] were 50 per cent care to Mrs Jenkins and 50 per cent care to Mr Mirkin.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

14. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mrs Jenkins and Mr Mirkin under section 50 of the Act.

2. For the reasons outlined above, the Tribunal finds that Mrs Jenkins provides 37 per cent care and Mr Mirkin provides 63 per cent care of [Child 1].

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Mirkin notified Child Support of the change in care on 30 September 2022.  As this is more than 28 days after the change occurred on 28 June 2022, according to paragraph 54F(3)(b) of the Act the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 28 June 2022 for Mrs Jenkins and from 30 September 2022 for Mr Mirkin.

Other care matters

1. Both parents alerted the Tribunal to a likely further change of care in relation to [Child 1].  The legislative scheme deals with any such subsequent change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Jenkins provides 37 per cent care of [Child 1] and Mr Mirkin provides 63 per cent care from 28 June 2022 but with effect from 28 June 2022 for Mrs Jenkins and from 30 September 2022 for Mr Mirkin.