La and Rabb (Child support)

[2020] AATA 5566

La and Rabb (Child support) [2020] AATA 5566 (19 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019949

APPLICANT:  Ms La

OTHER PARTIES:  Child Support Registrar

Mr Rabb

TRIBUNAL:Member J Leonard

DECISION DATE:  19 November 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms La had a care percentage of 21% and Mr Rabb had a care percentage of 79% in respect of [the child] from 4 August 2017 (with effect from 6 May 2020 due to the operation of subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988).

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 – date of effect – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – 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

BACKGROUND

1. This review concerns the care percentages used in a child support assessment.

2. Ms La and Mr Rabb are the parents of four children. This review relates to the care of their youngest child [the child] (born 2007). 

3. From September 2013, the assessment of child support that was in place was based on a care percentage of 100% for Ms La and 0% for Mr Rabb in respect of [the child]. On 7 August 2017 Ms La contacted Services Australia (Child Support), formerly the Department of Human Services, and advised that from 4 August 2017 it was anticipated that she would have 70 nights of care per year for [the child] in accordance with court orders. On 11 August 2017 Mr Rabb was recorded as stating that he would accept the care as notified by Ms La.

4. On 11 August 2017, a decision was made to vary the care percentages used in the child support assessment. It was decided that a change to the pattern of care occurred on 4 August 2017 such that Ms La had 19% care of [the child] and Mr Rabb had 81% care.

5. Mr Rabb objected to the decision on 6 May 2020 and on 8 September 2020 his objection was partly allowed. It was decided that Ms La had 15% care of [the child] from 4 August 2017 (based on 55 nights of care per year) and Mr Rabb had 85% care. It was determined that special circumstances did not prevent Mr Rabb from objecting to the decision of 11 August 2017 earlier, and so the change to the care percentage was applied from 6 May 2020.

6. On 25 September 2020, Ms La lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The application for review was heard on 19 November 2020. The Tribunal spoke to Ms La and Mr Rabb by telephone conference. In addition to oral evidence, the Tribunal had regard to documents provided by Child Support (219 pages) and the additional documents provided by Mr Rabb prior to the hearing.

ISSUES

1. The issues the Tribunal must decide are:

• whether there was a change to the care pattern for [the child] on 4 August 2017; and if so

• what care percentages should be used in the child support assessment; and

• what is the date from which they have effect?

CONSIDERATION

1. Child Support makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Child Support (Assessment) Act 1989 (the Assessment Act). These provisions require Child Support to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Sections 49 and 50 of the Assessment Act require the Tribunal to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

Was there a change to the care pattern for [the child]?

1. Orders were made on 28 July 2017 which relevantly provide that [the child] will live with Mr Rabb from 4 August 2017 and:

   7. Subject to the Undertaking given by the Mother under oath being complied with, the child shall spend time with the Mother at all times as may be agreed between the parties in writing and failing agreement as follows:

   a. For the second half of all Queensland gazetted school holiday periods in even numbered years and the first half in odd numbered years, with the father to be responsible for the costs of the child’s travel from [City 1] to [City 2] and with the Mother to be responsible for the costs of the child’s travel from [City 2] to [City 1] or otherwise as agreed in writing.

   b. Upon the Mother providing to the Father at least twenty one (21) days written notice of her intention to visit [City 2], on one (1) occasion in each school term for up to seven (7) days conditional upon the Mother presenting the child for school and extracurricular activities in that time.

2. [The child] attends a private school in Queensland and so school holidays may not follow the Queensland Department of Education website.

3. At hearing Ms La stated it was their intention that the care of [the child] was shared equally during the 14 weeks of his school holidays (49 nights each) and that she would have an additional seven nights care each school term (a further 28 nights per year) in accordance with the court orders.

4. Mr Rabb submitted calendars for the 2017, 2018, 2019 and 2020 years in which he indicated the nights [the child] was in the care of Ms La. The Tribunal notes that there was a subsequent care decision made on 10 September 2020 that the care of [the child] had changed from 15 December 2018. Although both Ms La and Mr Rabb expressed concern with this decision during the hearing, neither parent has objected to the decision and so it was not before the Tribunal to review.

5. Notwithstanding the advantage of hindsight, the Tribunal is not undertaking a reconciliation of the actual care that occurred from 4 August 2017. Rather, it is required to determine what was intended on 4 August 2017 and for a following period. In making this determination the Tribunal will take into account evidence of the likely pattern of care for [the child] as at the point-in-time of the making of the original decision on 11 August 2017.

What care percentages should be used in the child support assessment?

1. Depending upon whether it was an even or odd numbered year, the block of care in the Christmas school holiday period may result in a difference in the number of nights in a given calendar year. The Tribunal is satisfied, however, that for the care period commencing 4 August 2017 it was intended that Ms La have care of [the child] for 77 nights per year.

2. The legislation in relation to determinations of percentages of care was amended in 2018. In this case, however, because the change of care occurred before 23 May 2018 and Child Support was notified of the change within 28 days of the change occurring, the existing care percentages are revoked from the day before the change of care occurred, paragraph 54F(2)(a) of the Assessment Act. The Tribunal determines that the existing care percentages of 100% for Ms La and 0% for Mr Rabb are revoked from 3 July 2017, and the new care determination commences from 4 July 2017 such that Ms La has a care percentage of 21% and Mr Rabb has a care percentage of 79%.

When does the new care percentage take effect from?

1. As Mr Rabb did not object to the original decision until 6 May 2020, the date of effect of the objection decision is the date the objection was lodged: subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988  unless special circumstances apply.

2. Mr Rabb stated he contacted Child Support in January 2019 to advise that Ms La had not had care of [the child] during term 4 2018.  He did not dispute the care that was recorded for [the child] from 4 August 2017.

3. There are no special circumstances present in this case. This means the date of effect of the objection decision to vary the care percentages used in the child support assessment is the date the objection was lodged; 6 May 2020.

4. It was apparent at the hearing that Ms La is dissatisfied with the subsequent determination made on 10 September 2020 to vary the care percentages from 15 December 2018 such that she has a care percentage of 12% in respect of [the child]. Either parent can contact Child Support to object to that care percentage decision.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms La had a care percentage of 21% and Mr Rabb had a care percentage of 79% in respect of [the child] from 4 August 2017 (with effect from 6 May 2020 due to the operation of subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988).