Kyler and Kyler (Child support)

[2019] AATA 1731

Kyler and Kyler (Child support) [2019] AATA 1731 (16 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC015937

APPLICANT:  Ms Kyler

OTHER PARTIES:  Child Support Registrar

Mr Kyler

TRIBUNAL:Member Y Webb

DECISION DATE:  16 April 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from the care period beginning 2 July 2018 care percentages in relation to the child were 56% to Ms Kyler with a date of effect of 7 September 2018 and 44% to Mr Kyler with a date of effect of 2 July 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of actual 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 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 the percentages of care of Ms Kyler and Mr Kyler in relation to their daughter aged [specified] (“the child”).

2. A child support case was registered for collection by the Department of Human Services (“Child Support Agency”) on 28 February 2017.  Since 21 May 2018 the percentages of care were that Ms Kyler had 51% care and Mr Kyler had 49% care.

3. There are no court orders or written parenting plans in relation to the care of the child.

4. On 7 September 2018 Ms Kyler contacted the Child Support Agency and advised that from 27 August 2018 the care that was occurring for the child was that Mr Kyler had care three nights per fortnight and that she had care for all other nights, being 11 nights per fortnight.

5. The Child Support Agency was unable to make contact with Mr Kyler and on 22 September 2018 a delegate of the Registrar decided that a change of care had occurred and that Ms Kyler had 79% care of the child and Mr Kyler 21% care from 27 August 2018.

6. On 25 September 2018 Mr Kyler objected to that decision.  He contended that the care that was occurring was that the care of the child was a “week about” to both parents.

7. On 10 February 2019 an objections officer determined that there had been no change in levels of care and that the care continued to be 51% to Ms Kyler and 49% to Mr Kyler.

8. On 15 February 2019 Ms Kyler requested review by the Administrative Appeals Tribunal (“the Tribunal”).

9. Ms Kyler and Mr Kyler attended the hearing by way of a telephone conference on 16 April 2019 and both gave evidence on affirmation. 

10. Immediately prior to the hearing Ms Kyler provided documentation which was not directly relevant to the review.  The documents were marked Exhibits A1 to A3.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act). In this case, there are no court orders or written parenting plans in relation to the care of the child and therefore it is the actual care which is relevant.

4. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has had, or is likely to have, a pattern of care. It relevantly provides as follows:

   Determination of percentage of care—responsible person has had etc. a pattern of care for a child

   (1)      This section applies if:

   (a)      either of the following applies:

   (i)       an application is made under section 25 or 25A for a parent to be   assessed in respect of the costs of the child;   

   (ii)       a parent is taken under section 73A to have had a relevant dependent   child from a day specified in that section;

   and the Registrar is satisfied that a responsible person for the child has had, or is            likely to have, a pattern of care for the child during such period (the care period)              as the Registrar considers to be appropriate having regard to all the   circumstances; or

   …

   (2)       The Registrar must determine the responsible person’s percentage of care for the child during the care period.

   (3)      The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the care period.

   …       

5. Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, Ms Kyler and Mr Kyler did not contend that nights were an unsuitable measure of the care that they were providing to their child.  The Tribunal therefore finds that nights are an appropriate method of ascertaining the care of the child in this case.

7. The Assessment Act provides that the care percentage must be determined for a ‘care period’ which is effectively defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12-month period starting from the date of the assessment and reflecting the actual care that a person has had, or is likely to have, during the care period. In this case the Tribunal is satisfied that a 12-month care period is appropriate.

8. In this case, Ms Kyler told the Tribunal that the care which had been occurring was that she had the care of the child for eight nights per fortnight during school terms and for seven nights per fortnight during school holidays.  Ms Kyler stated that this pattern had been occurring since 2 July 2018. 

9. Mr Kyler agreed.  He confirmed that his care was six nights per fortnight during school terms and seven nights per fortnight during school holidays.  He also agreed that this had been the pattern of care since 2 July 2018.

10. Mr Kyler stated that his dissatisfaction was with the original decision which was determined on the basis that he had three nights of care per fortnight.  He stated that that had never been the case and that was the reason for his objection.

11. The Tribunal is satisfied, and there was no dispute from either of the parents, that the actual care which had been occurring since 2 July 2018 was that Ms Kyler had eight nights of care per fortnight during school terms and seven nights per fortnight during school holidays.  Therefore, the care that Mr Kyler has had since 2 July 2018 has been six nights of care per fortnight during school terms and seven nights per fortnight during school holidays. 

12. In calculating the percentages of care the Tribunal finds that these are:

    ·For Ms Kyler:  8  X  20 fortnights (school terms) + 7  X  6 fortnights (school hols) = 160 + 42 = 202 nights per year = 202/365 = 55.3% = 56%

    ·For Mr Kyler: 6  X  20 fortnights (school terms) + 7  X  6 fortnights (school hols) = 120 + 42

    = 162 nights per year = 162/365 = 44.3 = 44%

13. The parent with the lower percentage of care is rounded down in accordance with section 54D of the Assessment Act.

14. The Tribunal finds that this pattern of actual care had been in place since 2 July 2018 and therefore that the 12-month care period commenced from 2 July 2018.  The Tribunal notes that although the Tribunal has decided that a 12-month care period is appropriate from 2 July 2018, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

15. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

16. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 2 July 2018, Ms Kyler had a care percentage of 51% (and a cost percentage of 50%) in relation to the child. Mr Kyler had a care percentage of 49% and a cost percentage also of 50%. The Tribunal’s determination will mean that Ms Kyler will have a care percentage of 56% and a cost percentage of 57%. Mr Kyler will have a care percentage of 44% and a cost percentage of 43%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parents having less than regular care), the existing determinations of percentage of care must be revoked in accordance with section 54F which relevantly states:

   54FDetermination must be revoked if there is a change to the responsible person’s cost percentage

   (1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

   (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (c)section 54G does not apply; and

   (d)subsection (2) applies in relation to the individual.

   Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 2 July 2018. The Tribunal also finds that Ms Kyler notified the Child Support Agency of the change on 7 September 2018. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

3. Ms Kyler’s care has increased and according to subparagraph 54F(3)(b)(i) her existing care percentage of 51% will be revoked from 6 September 2018 being the day before the Child Support Agency was notified of the care change.

4. Mr Kyler’s care has decreased and according to subparagraph 54F(3)(b)(ii) his existing care percentage of 49% will be revoked from 1 July 2018 being the day before the change of care day.

5. An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Ms Kyler’s and Mr Kyler’s percentages of care under section 50 of the Assessment Act.

6. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

7. The Tribunal has revoked Ms Kyler’s existing determination with effect from 6 September 2018; therefore the change of care applies from 7 September 2018 for Ms Kyler.

8. The Tribunal has revoked Mr Kyler’s existing determination with effect from 1 July 2018; therefore the change of care applies from 2 July 2018 for Mr Kyler.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from the care period beginning 2 July 2018 care percentages in relation to the child were 56% to Ms Kyler with a date of effect of 7 September 2018 and 44% to Mr Kyler with a date of effect of 2 July 2018.