Laslett and Pateman (Child support)

[2021] AATA 3180

Laslett and Pateman (Child support) [2021] AATA 3180 (6 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021096

2021/MC021122

APPLICANT:  Mr Laslett

OTHER PARTIES:  Child Support Registrar

Ms Pateman

TRIBUNAL:Member L Rieper

DECISION DATE:  6 July 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of care change - existing percentage of care determinations revoked and new determinations made - 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 Laslett and Ms Pateman are the parents of [the child] (born in August 2014) in respect of whom there has been a child support assessment in place since 2015.

2. Mr Laslett has sought review of two objection decisions made by Services Australia – Child Support (Child Support):

(a)A decision of 5 March 2021 disallowing an objection to a decision made on 3 December 2020 that Ms Pateman had 100% care of [the child] from 12 July 2020; and

(b)A decision of 8 March 2021 disallowing an objection to a decision made on 7 December 2020 that Ms Pateman had 100% care of [the child] from 18 March 2020 but effective from the date of notification, being 1 December 2020.

1. On 24 and 29 March 2021, Mr Laslett applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal seeking an independent review of the objection decisions. The application was heard on 6 July 2021. Mr Laslett and Ms Pateman both attended the hearing by telephone and gave sworn evidence.  No representative of the Child Support Registrar attended the hearing.

2. The Tribunal had before it a Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 in respect of each application and two bundles of supplementary documents. 

ISSUES

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

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 the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. The issues for the Tribunal to determine in this case are:

   ·whether the existing determinations of percentage of care should be revoked and if so, from when should they be revoked, and

   ·whether new determinations of the percentage of care should be made and, if so, what is the percentage of care under the new determination/s and from when should they apply.

CONSIDERATION

1. This matter has a complex history with regards to the determination of the percentage of care of [the child].

2. Child Support recently conducted a review, corrected errors it uncovered and provided a useful summary of the history of the care percentages as they currently stand.  In short:

• From 8 January 2015 Ms Pateman had 100% care.

• From 29 October 2016 Ms Pateman had 83% care and Mr Laslett had 17% care.

• From 18 March 2020 Ms Pateman had 83% care and Mr Laslett had 0% care.

• From 12 July 2020 Ms Pateman had 83% care and Mr Laslett had 0% care.

• From 12 October 2020 Ms Pateman had 100% care.

• From 6 November 2020 Ms Pateman had 72% care and Mr Laslett had 28% care.

• From 8 March 2021 Ms Pateman had 61% care and Mr Laslett had 39% care.

1. The care percentages effective from 12 July 2020 and 12 October 2020 are the result of the objection decision dated 5 March 2021.

2. The care percentages effective 18 March 2020 is the result of the objection decision dated 8 March 2021.

3. Mr Laslett says that there were two periods in which he had 0% care of [the child] in 2020 because of COVID-19 lockdowns.  However, he says that he had regular care of [the child] for the period 27 May 2020 to 18 July 2020 (52 days).  Ms Pateman agreed with the dates and said that during that period Mr Laslett had 14 nights of care.

4. The court orders in evidence before the Tribunal are orders of the Federal Circuit Court of Australia made on 24 August 2016.  They provide that [the child] live with Ms Pateman and in the period 12 August 2019 to 8 March 2021 Mr Laslett would have overnight care four nights per fortnight and part of the school holidays.  The parties accept that this equates to 28% or regular care by Mr Laslett.

5. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

6. Paragraph 54F(3)(b) of the Act provides that a revocation of the existing care determination takes effect on the day before the Registrar is notified that care has increased, if notification was made more than 28 days after the change of care day. In respect of the parent whose care has reduced, the revocation takes place the day before the change of care day.

7. The care changes which are the subject of the two decisions under review are:

(a)On 12 October 2020 Ms Pateman contacted Child Support and advised that [the child] had not been in Mr Laslett’s overnight care since 7 July 2020 (folio 183).  Mr Laslett confirmed the change to overnight care but said that it occurred from 12 July 2020 (folio 29).

(b)On 1 December 2020 Ms Pateman advised that [the child] was not in Mr Laslett’s care in the period 14 March 2020 to 27 May 2020 (folio 57).  Mr Laslett subsequently advised that the change of care occurred from 18 March 2020 (folio 61).

1. In each case notification took place more than 28 days after the change of care occurred.

2. Both parents agree on the changes to the pattern of care in 2020. Essentially the pattern of care was disrupted during the two COVID-19 lockdowns which occurred in Melbourne in 2020 but was otherwise unchanged.

3. The difficulty is the timing of the notifications of change.

4. Because the change which occurred in July 2020 was not notified until 12 October 2020 the increase in care has been correctly increased to 100% from 12 October 2020 and the decrease in care has been correctly decreased to 0% from 12 July 2020 (although there was no impact as it was already 0%).

5. As the change which occurred in March 2020 was not notified until 1 December 2020 it would have been correct to apply the increase in care from 1 December 2020.  However, by that date there had been subsequent care changes.  The decrease in care has been correctly accepted from 18 March 2020.

6. For these reasons the Tribunal agrees with the objection decisions and they must be affirmed.

DECISION

The decisions under review are affirmed.